IN THE SUPREME COURT OF FLORIDA ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PASCO COUNTY, FLORIDA

IN THE SUPREME COURT OF FLORIDA JOHN RUTHELL HENRY, v. Appellant, STATE OF FLORIDA, Appellee. / CASE NO. SC14-1053 L.T. No. 85-2685 CFAES DEATH WARRANT SIGNED EXECUTION SCHEDULED June 18, 2014, 6:00 p.m. ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PASCO COUNTY, FLORIDA ANSWER BRIEF OF APPELLEE PAMELA JO BONDI ATTORNEY GENERAL CANDANCE M. SABELLA Chief Assistant Attorney General Capital Appeals Bureau Chief Florida Bar No. 0445071 candance.sabella@myfloridalegal.com CAROL M. DITTMAR Senior Assistant Attorney General Florida Bar No. 0503843 carol.dittmar@myfloridalegal.com Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 COUNSEL FOR APPELLEE

TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii PRELIMINARY STATMENT... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF THE ARGUMENT... 11 STANDARD OF REVIEW... 11 ARGUMENT... 12 WHETHER THE UNITED STATES SUPREME COURT S RECENT DECISION IN HALL V. FLORIDA, 2014 WL 2178332 (MAY 27, 2014), OPERATES TO EXCUSE HENRY S FAILURE TO TIMELY PURSUE A CHALLENGE TO HIS ELIGIBILITY FOR EXECUTION BASED ON A CLAIM OF INTELLECTUAL DISABILITY, AND, IF SO, WHETHER HENRY HAS ALLEGED FACTS SUFFICIENT TO SATISFY THE STANDARD FOR INTELLECTUAL DISABILITY. CONCLUSION... 28 CERTIFICATE OF SERVICE... 29 CERTIFICATE OF FONT COMPLIANCE... 29 i

TABLE OF AUTHORITIES Federal Cases Atkins v. Virginia, 536 U.S. 304 (2002)... passim Barefoot v. Estelle, 463 U.S. 880 (1983)... 27 Bowersox v. Williams, 517 U.S. 345 (1996)... 27 Delo v. Stokes, 495 U.S. 320 (1990)... 27 Hall v. Florida, 2014 WL 2178332 (May 27, 2014)... passim Hedrick v. True, 443 F.3d 342 (4th Cir. 2006)... 16 Henry v. Sec y, Dept. of Corr., 490 F.3d 835 (11th Cir. 2007)... 2 Mathis v. Thaler, 616 F.3d 461 (5th Cir. 2010), cert. denied, 131 S. Ct. 1574 (2011)... 16 State Cases Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, 875 So. 2d 563 (Fla. 2004)... 14 Amendments to the Florida Rules of Criminal Procedure, 842 So. 2d 110 (Fla. 2003)... 14 Bedford v. Kasich, 2011 WL 1691823 (S.D. Ohio 2011)... 16 Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005)... 16 Buenoano v. State, 708 So. 2d 941 (Fla. 1998)... 27 Burns v. State, 944 So. 2d 234 (Fla. 2006)... 26 Cherry v. State, 959 So. 2d 702 (Fla. 2007)... 18, 19 ii

Diaz v. State, 132 So. 3d 93 (Fla. 2013)... 25 Dufour v. State, 69 So. 3d 235 (Fla. 2011)... 25 Foster v. State, 929 So. 2d 524 (Fla. 2006)... 25 Gore v. State, 91 So. 3d 769 (Fla. 2012)... 11 Head v. Hill, 587 S.E.2d 613 (Ga. 2003)... 16 Henry v. State, 574 So. 2d 73 (Fla. 1991)... 2 Henry v. State, 649 So. 2d 1366 (Fla. 1994), cert. denied, 515 U.S. 1148 (1995)... 2 Henry v. State, 862 So. 2d 679 (Fla. 2003)... 2, 15 Hill v. State, 921 So. 2d 579 (Fla.), cert. denied, 546 U.S. 1219 (2006)... 15 Hodges v. State, 55 So. 3d 515 (Fla. 2010)... 25 Hurst v. State, 2014 WL 1698370 (Fla. May 1, 2014)... 25 Nixon v. State, 2 So. 3d 137 (Fla. 2009)... 18 Quince v. State, 116 So. 3d 1262 (Fla. 2012), cert denied, 2014 WL 2440792 (Jun 02, 2014)... 18 Rodriguez v. State, 2013 WL 462069 (Fla. 2013)... 18 State v. Frazier, 873 N.E.2d 1263 (2007)... 16 Thompson v. State, 41 So. 3d 219 (Fla. 2010)... 18 Winston v. Commonwealth, 604 S.E.2d 21 (Va. 2004)... 16 iii

Other Authorities 921.137(1), Fla. Stat... 21 921.137, Fla. Stat... 13, 25 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013... 23 Fla. R. Crim. P. 3.203... passim Fla. R. Crim. P. 3.203(b)... 21 Fla. R. Crim. P. 3.203(d)(4)(F) (2004)... 15 Fla. R. Crim. P. 3.203(f)... 15 Fla. R. Crim. P. 3.203(i)... 27 Fla. R. Crim. P. 3.851... 14, 17 Fla. R. Crim. P. 3.851(d)(2)(B)... 17 iv

PRELIMINARY STATMENT References to the direct appeal record following Henry s first trial will be designated by DAR1 followed by the appropriate volume and page number. References to the direct appeal record following remand will be designated by DAR2 followed by the appropriate volume and page number. References to the initial postconviction record on appeal will be designated by PCR followed by the appropriate volume and page number. References to the record on appeal from the circuit court upon signing of the death warrant will be designated as R (record on appeal certified May 19, 2014), Supp. R (supplemental record on appeal certified May 30, 2014) and Supp. 2R (record on appeal certified June 4, 2014) followed by the appropriate volume and page number. 1

STATEMENT OF THE CASE AND FACTS Henry s conviction and sentence of death for the 1985 murder of Suzanne Henry was extensively litigated in state and federal court. 1 Henry v. State, 574 So. 2d 73 (Fla. 1991); Henry v. State, 649 So. 2d 1366 (Fla. 1994), cert. denied, 515 U.S. 1148 (1995); Henry v. State, 862 So. 2d 679 (Fla. 2003); Henry v. Sec y, Dept. of Corr., 490 F.3d 835 (11th Cir. 2007). Upon the conclusion of this litigation, Governor Rick Scott signed a death warrant on May 2, 2014, denying clemency and setting Henry s execution for June 18, 2014 at 6:00 p.m. After the warrant for Henry s execution was signed, this Court issued a Scheduling Order on May 5, 2014, setting a deadline of May 19, 2014 for all proceedings to be completed in the lower court. The lower court promptly conducted a Case Management Conference on May 6, 2014. At this hearing, defense counsel, Baya Harrison informed the court that he had spent the last couple of months anticipating this warrant and had developed a strategy. (R. 55) He was not requesting an evidentiary hearing or filing claims in the circuit court, but, 1 On May 6, 2014, the State filed three pleadings below which set out a comprehensive outline of the prior proceedings, facts and issues raised with an index of prior opinions. (R. 3-30, 32-39; Supp. 2R. 13-29) The facts and case history outlined herein are limited to those relevant to the instant motion. 2

rather planned to seek a competency evaluation from the Governor. (R. 56-64) Counsel sought and obtained a stay from the Governor on May 12, 2014 pursuant to Florida Statute 922.07. (Supp 2R. 114-16) The Governor then created a Commission, appointing Drs. Werner, Taylor and Myers, who evaluated Henry on Friday, May 16, 2014. The stay was dissolved after the Commission completed its examination of Henry and concluded that Henry has the mental capacity to understand the nature of the death penalty and the reasons why it was imposed on him. (Supp. 2R. 113) In conducting the evaluation, the doctors also considered Henry s prior IQ score of 78 and concluded, based on their clinical interview, review of records, and interviews with two correctional officers, that with reasonable medical certainty Henry does not suffer from any DSM-5 psychiatric illness or intellectual disability. (Supp. 2R. 113) Following the United State Supreme Court decision in Hall v. Florida, 2014 WL 2178332 (May 27, 2014), Henry then raised a claim under Rule 3.203, asserting for the first time that he cannot be executed because he is intellectually disabled, and requesting the appointment of experts to determine his mental functioning. (Supp. R. 140-50) Without response from the State, the lower court summarily denied the motion as untimely. The 3

court also noted that it was possibly without jurisdiction. (Supp. R. 151-52) Relevant to the issue before this Court, the files and records from Henry s first and second trials and his postconviction proceedings show that Henry has been examined by numerous mental health professionals, including Doctors Fesler, Afield, Berland, Sprehe and Mosman, as well as the Commission doctors, Doctors Werner, Taylor and Myers. Psychologist Dr. Robert Berland, however, is the only one who has performed an IQ test. He evaluated John Henry in October of 1986 and administered the Minnesota Multiphasic Personality Inventory ( MMPI ); the Wechsler Adult Intelligence Scale ( WAIS ); the Bender-Gestalt; and the Rorschach or ink blot test. Dr. Berland s report reflects that Henry s IQ was 78 based on the 1986 WAIS test. (PCR V3/424-30) Dr. Berland also testified at Henry s first trial in Pasco County. (DAR1 V6/875-934) He described the defendant as having anti-social problems and psychotic thinking, but noted he was capable of recognizing and producing conventional thinking. (DAR1 V6/887-88) He found no clear support for brain damage. Dr. Berland confirmed his finding of a 78 IQ score which he noted was in the middle of the 70-85 range. He also noted that the range for intellectual disability was 70 or below. (DAR1 V6/889) 4

He said that Henry possibly suffered from schizo-affective disorder or bi-polar disorder. (DAR1 V6/892) Dr. Walter Afield, a specialist in neurology and psychiatry, relied upon this testing in his evaluation of the defendant. He first examined John Henry in December of 1986. (DAR1 V6/987) Dr. Afield testified that Henry had a very serious and severe drug and alcohol addiction, and had deteriorated. His diagnosis was chronic paranoia and drug and alcohol abuse. (DAR1 V6/940-47) Dr. Afield noted that records which showed Henry had a very low IQ, almost in a retarded kind of area reinforced his opinion. (DAR1 V6/948) Dr. James Fesler examined Henry in 1987 after being court appointed to do a sanity evaluation. In his report he describes Henry as having probably low intelligence, but with a clear understanding of the charges and possible consequences. (PCR V3/437-440) He also testified at trial. (DAR1 V5/770-93; DAR2 V6/715-34) During the second penalty phase he told the jury that Henry gave a pretty good representative history of the events of December 22nd and 23rd of 1985. Henry was alert, pleasant to talk to, maintained his composure throughout the interview, and gave very clear, relevant answers to questions. (DAR2 V6/719) Henry told Dr. Fesler that there had been some preceding history between he and his wife; they had separated two weeks 5

previously. Henry said he intended to go over that day to talk to her about some Christmas gifts for his stepson or her son. He told the doctor that in the course of going over there, he had stopped in an area that he was familiar with, that in the area had bought some crack cocaine, and had smoked some of it. He said he borrowed a car from a friend to drive to her house. Dr. Fesler asked him how he was feeling on the way over there. He said he was, basically, feeling okay. He didn t feel like he was in any messed up in the mind at the time. He stated that he arrived there and began to talk to Suzanne, but, according to Henry, she became upset and angry and was questioning him about involvement with a girlfriend she felt that he had. He said she became more angry and asked him to leave. He was not initially in the mood to leave. He said she got a knife from somewhere in the house and started to come towards him with the knife. He said that she had tried to get him with the knife and he received some small cuts. Henry told the doctor that he got the knife away, lost control and just starting stabbing her. (DAR2 V6/720-21) Henry also provided Fesler with his history. Henry reported beginning drinking around age ten. He also claimed that he started hearing voices occasionally around age fifteen. Dr. 6

Fesler noted these times usually coincided with heavy drug or alcohol use. (DAR2 V6/728) Dr. Daniel Sprehe also was appointed to determine competency and sanity. He issued a report in 1987 which was introduced during the postconviction proceedings. He found Henry was able to appreciate the nature, consequences & wrongfulness of his actions at the time of the murder of Suzanne Henry. He found Henry suffered from long-standing anti-social personality and drug abuse syndrome. (DAR2 V6/437-440) Sprehe also testified that in his opinion, Henry was competent at that time, suffering from no psychotic illness and able to proceed with trial. (DAR2 V6/739-40) He did not find any evidence that Henry was schizophrenic. (DAR2 V6/741) Rosa Mae and Stephanie Thomas testified for the defense that the defendant lived with them at the time of Suzanne Henry s murder. (DAR2 V6/749-73) Rosa had gone to school with him and dated him when she was a teenager. (DAR2 V6/758) He moved in with her about six months prior to Suzanne Henry s death on December 22nd of 1985. (DAR2 V6/759) Rosa described incidents where John Henry would threaten to call the police on Suzanne if she would not leave his house; that he did not want her anymore. She said Henry was a good provider; he made sure everything was done around the house and they had a good 7

relationship. (DAR2 V6/762) Her daughter, Stephanie described him as always being very nice to her and her brother; that he always went out of his way to get them whatever they wanted. (DAR2 V6/752) Both Rosa and Stephanie testified that Henry worked at a glass company in Zephryhills. (DAR2 V6/756, 768) Rosa also testified that Henry sold jewelry to get money to buy drugs. (DAR1 V6/861) Rosa had also testified during the guilt phase that after committing the murders of Suzanne and Eugene Henry, John Henry came to her house. He told her he needed to go stay at a motel and to get him some extra clothes. (DAR1 V4/568-69; DAR2 V4/452) When they got to the motel, Henry paid for the room, took a shower and changed clothes. (DAR2 V4/453-54) Another childhood friend of Henry s, Nathan Giles, testified that he saw Henry on the day of the murder. Henry offered to give him a ride in exchange for payment. After Giles paid him, Henry bought drugs with the money, then borrowed a car to give him a ride. (DAR1 V6/843-45) Dr. Bill Mosman testified at the post conviction hearing on behalf of the defense. He noted that the defendant should have qualified for the age mitigator because his ability to understand, analyze, make judgments, process, was equal to a 13-8

year, 11 month old child because he had an IQ of 78. (PCR V6/ 1025) Henry s trial counsel, Richard A. Howard, Circuit Judge in and for the Fifth Judicial Circuit, testified that at the time he undertook representation of Henry he had available to him all of the files and records from Henry s first trials. (PCR V6/1064) He was aware that a number of mental-health professionals, both psychiatric and psychological, had examined Henry. He had their reports, depositions and trial testimony. He also had conversations on the phone with some of them. (PCR V6/1065) He was aware that this evidence had been presented in both the Hillsborough and prior Pasco trials and that the jury recommended death in both cases. (PCR V6/1066) He was also aware of Henry s childhood and developmental years. (PCR V6/1066) He also disagreed with Dr. Mosman s assessment that Henry functioned at the level of a 13-14 year-old. He was able to discuss adult concepts with Henry. (PCR V6/1097) Additionally, at the close of the first trial Henry orally moved the court for a new attorney, stating: MR. HENRY: Good morning. Yeah, I would like to bring it to the Court s attention that as of this moment I feel I am not properly being represented and I wish to ask the Court to remove Mr. Focht from being my attorney and I would like to be, if it s possible, to be recommended to another attorney because I feel that there s things that s not being brought to the 9

Court s attention concerning me that he s not bringing up, going into details concerning witnesses in my behalf. Some of the witnesses have not brought forward that I felt that would have came forward if it had been brought to their attention. Also, there s things that haven t been brought up that I have requested my attorney to bring up that he have failed to bring up and I feel that, also, in this case, that it being partiality shown towards the victim. My main concern is that myself and Mr. Focht, the things that I have requested of him to bring up and he just haven t. And I just feel like I m not being properly represented. (DAR1 V6/873-874) The record also shows that Henry has repeatedly written letters and filed pro se pleadings complaining about his various lawyers throughout his litigation. (e.g. DAR2 V7/872-874, 981-82; Supp. 2R. 126) Any additional facts necessary for disposition of the assigned errors on appeal will be discussed in the argument, infra. 10

SUMMARY OF THE ARGUMENT Henry s request to explore his alleged intellectual disability is untimely, facially insufficient, and refuted by the record. Henry s direct appeal has been final since June 19, 1995 and his initial post-conviction motion was final on October 9, 2003. As such any claims Appellant may have had under Rule 3.203 should have been presented before December 1, 2004. Further, Appellant admits and the record shows that Henry s undisputed IQ score is 78. Relief was properly denied below. STANDARD OF REVIEW This Court reviews the summary denial of post-conviction claims de novo, accepting the movant s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record shows that the movant is entitled to no relief. Gore v. State, 91 So. 3d 769, 774 (Fla. 2012). 11

ARGUMENT WHETHER THE UNITED STATES SUPREME COURT S RECENT DECISION IN HALL V. FLORIDA, 2014 WL 2178332 (MAY 27, 2014), OPERATES TO EXCUSE HENRY S FAILURE TO TIMELY PURSUE A CHALLENGE TO HIS ELIGIBILITY FOR EXECUTION BASED ON A CLAIM OF INTELLECTUAL DISABILITY, AND, IF SO, WHETHER HENRY HAS ALLEGED FACTS SUFFICIENT TO SATISFY THE STANDARD FOR INTELLECTUAL DISABILITY. In the court below, Henry requested the appointment of experts and an evaluation to determine whether he is intellectually disabled so as to render his execution unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 2014 WL 2178332 (May 27, 2014). He asserts that the Eighth Amendment to the United States Constitution prohibits his execution because he is intellectually disabled. The lower court summarily denied the request as untimely based on this Court s scheduling Order of May 19, 2014 and questioned whether jurisdiction existed to review the motion. Regardless of whether the lower court was correct that it did not have jurisdiction or that this Court s scheduling Order precluded any further filing, the State urges this Court to affirm the denial. The real issue before this Court is whether the United States Supreme Court s recent decision in Hall v. Florida, 2014 WL 2178332 (May 27, 2014), operates to excuse Henry s failure to timely pursue a challenge to his eligibility for execution based on a claim of intellectual disability, and, 12

if so, whether Henry has alleged facts sufficient to satisfy the standard for intellectual disability. The State asserts that Hall does not operate to excuse the procedural bar and, even if it did, Henry has not alleged sufficient facts to satisfy the standard for intellectual disability. Accordingly, Henry s Rule 3.203 motion is untimely, procedurally barred, legally insufficient and affirmatively refuted by the record. As such, it is properly denied and no request for stay should be granted. Henry s death sentence was final on June 19, 1995. Henry has had ample opportunity, but has never previously asserted a claim of intellectual disability. His mental functioning has been explored and extensively analyzed since prior to his capital trial for the murder of Suzanne Henry. He did not present a diagnosis of intellectual disability as a mitigating circumstance at trial, or argue in postconviction proceedings that his trial attorney should have investigated the issue. He did not seek an evaluation of his mental functioning following the release of the Atkins opinion or the adoption of Florida Rule of Criminal Procedure 3.203. His failure to have asserted a timely claim of intellectual disability forecloses any relief at this time. In 2001, the Florida Legislature promulgated Section 921.137, Florida Statutes, which protected intellectually 13

disabled individuals from being sentenced to death. The statute became effective on July 1, 2001. See Amendments to the Florida Rules of Criminal Procedure, 842 So. 2d 110 (Fla. 2003). On June 20, 2002, the United States Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304 (2002), holding that execution of an intellectually disabled person violated the Eighth Amendment to the United States. On May 20, 2004, this Court adopted Rule of Criminal Procedure 3.203, effective October 1, 2004, to provide a mechanism to prevent Eighth Amendment violations under Atkins from occurring in Florida. At the time Rule 3.203 was adopted, it provided for three categories of individuals that could seek relief: one category for future cases, one for nonfinal cases, and one for final cases, where the prisoner had been convicted of murder and sentenced to death and the conviction and sentence had been upheld on appeal. See Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, 875 So. 2d 563 (Fla. 2004). Pursuant to the rule, prisoners who had previously litigated a motion for postconviction relief under Rule 3.851 were required to file a successive motion presenting 14

any Atkins claim within 60 days of October 1, 2004. 2 See Fla. R. Crim. P. 3.203(d)(4)(F) (2004). The rule also expressly provided that any claim under the rule not filed in accord with the time requirements for filing is waived, unless good cause is shown for the failure. Fla. R. Crim. P. 3.203(f). This Court enforced the waiver provision when Clarence Hill attempted to present a claim of disability just prior to his execution, outside the relevant sixty-day window. Hill v. State, 921 So. 2d 579, 584 (Fla.), cert. denied, 546 U.S. 1219 (2006). In Hill, the Court held that Clarence Hill was not entitled to a stay of execution in order to determine whether he was intellectually disabled. The Court acknowledged that, under Rule 3.203 as originally adopted, Hill could and should have brought any claim of intellectual disability within 60 days of the Oct. 1, 2004 adoption of the rule. Because Hill did not present his claim until filing a successive motion for postconviction relief after the signing of a death warrant setting his execution, his claim was untimely, procedurally barred, and proper summarily denied. Id., at 584. Henry is in the same posture as Hill in his belated attempt to present this issue, and his request to 2 This Court affirmed the denial of Henry s initial postconviction motion on Oct. 9, 2003. Henry v. State, 862 So. 2d 679 (Fla. 2003). 15

explore the issue further must also be rejected as procedurally barred. Florida s requirement that any claim of intellectual disability as a bar to execution be presented on a timely basis is not unique or unusual. Other jurisdictions also recognize that such a claim must be considered waived if not promptly pursued. See State v. Frazier, 873 N.E.2d 1263, 1291 (2007); Hedrick v. True, 443 F.3d 342, 363 66 (4th Cir. 2006); Bowling v. Commonwealth, 163 S.W.3d 361, 371 (Ky. 2005); Winston v. Commonwealth, 604 S.E.2d 21, 51 (Va. 2004); Head v. Hill, 587 S.E.2d 613, 620 (Ga. 2003). In Bedford v. Kasich, 2011 WL 1691823, 9 (S.D. Ohio 2011) (not reported in F.Supp.), the court considered a civil rights lawsuit which asserted that Ohio s determination that Bedford s intellectual disability claim was procedurally barred violated Bedford s rights. Bedford s due process argument was rejected. Similarly, in Mathis v. Thaler, 616 F.3d 461, 464-65 (5th Cir. 2010), cert. denied, 131 S. Ct. 1574 (2011), the federal court held that a successive habeas petition presenting a claim of intellectual disability as a bar to execution was properly dismissed as untimely. These authorities compel the denial of Henry s request to explore a claim of intellectual disability as untimely. 16

Henry s reliance on the recent decision in Hall, as cause to excuse his failure to previously request relief is misplaced and insufficient. First, Hall is easily distinguishable by the fact that Hall pursued relief on a timely basis, filing a motion to determine the adequacy of his mental functioning on November 30, 2004, following the adoption of Florida Rule of Criminal Procedure 3.203. Hall neither creates a new constitutional right nor provides a new factual basis to permit the late filing of a successive motion for postconviction relief under Rule 3.851. The Eighth Amendment right of intellectually disabled individuals not to be executed was recognized in Atkins, so Rule 3.851(d)(2)(B) would have authorized the filing of a successive motion on the issue at that time; the adoption of Rule 3.203 made this clear and provided the opportunity to pursue any potential claim. Hall s timely pursuit of his remedy for any claim of relief under Atkins contrasts markedly with Henry s untimely motion for relief, and supports the State s position that this request must be rejected as untimely. In addition, Hall cannot excuse Henry s failure to raise this claim previously since the constitutional infirmity found in Hall is not facially apparent from the definition of intellectual disability found in Florida s statute and rule; therefore, this infirmity could not have been the reason that 17

Henry did not timely pursue a claim of intellectual disability when provided the opportunity in 2004. As Hall recognizes, this Court did not interpret the law to require a bright-line cutoff at 70 until it decided Cherry v. State, 959 So. 2d 702 (Fla. 2007). See Hall, 2014 WL 2178332 at 8, 12 (2014). In addition, this Court has repeatedly considered rulings from timely filed Rule 3.203 motions after an evidentiary hearing where the defendant had IQ scores above the 70 cutoff. See, e.g. Rodriguez v. State, 2013 WL 462069, (Fla. 2013) (IQ over 70 denied after evidentiary hearing); Quince v. State, 116 So. 3d 1262 (Fla. 2012) (table), cert denied, 2014 WL 2440792 (Jun 02, 2014) (denying relief after evidentiary hearing where three IQ tests taken by Quince-produced scores of 79 on his 1980 test, 77 on his 1984 test, and 79 on his 2006 test and there was no proof of onset before age 18); Thompson v. State, 41 So. 3d 219 (Fla. 2010) (table) (denial after evidentiary hearing where evidence suggested IQ could be in the 80 s, defendant did not have deficits in adaptive functioning and failed to prove onset before the age of 18); Nixon v. State, 2 So. 3d 137, 140 (Fla. 2009) (denial after evidentiary hearing where defendant s IQ scores were 88, 73, and 72). It is disingenuous to assert that Henry did not explore any intellectual disability in 2004 due to the way the law was interpreted in 2007, out of concern that the 18

Attorney General may object based on the score Dr. Berland obtained. Clearly, a number of similarly situated defendants raised the claim and obtained full review. Henry s attempt to excuse the untimely filing of the claim based on the future holdings in Cherry and Hall should be rejected when other defendants could, and did, obtain review of such claims. This is especially true as these claims continued to be presented long after Cherry recognized the 70 cutoff. Furthermore, Hall does not provide Henry with any new substantive claim. Hall did not invalidate any Florida law or court rule with regard to this issue, it held only that Florida s standard had been unconstitutionally applied on the facts of that particular case. The finding in Hall that Florida had unconstitutionally applied the standard for a determination of intellectual disability in that case does not assist Henry. The obstacle in Hall to a valid determination of mental functioning was the use of a bright-line IQ score of 70 as a cutoff for finding intellectual disability as a bar to execution. According to the United States Supreme Court, the Eighth Amendment requires that a standard error of measurement be considered, which could potentially lower an IQ score by as much as five points. Therefore, Florida should not have 19

precluded Hall from presenting other evidence of his mental disability based solely on an IQ score of 71. Henry, of course, has never been precluded from presenting any evidence of his intellectual disability, having never previously pursued the claim; accordingly, Hall is of no benefit to him. The crux of the matter is that out of all the doctors who have evaluated Henry through the years-none have diagnosed him as truly intellectually disabled and counsel does not allege that such a diagnosis exists. Moreover, he does not even allege that his IQ score is within five points of the 70 cutoff. Even following Hall s instruction to adjust the lowest IQ score to reflect a possible measurement error, Henry acknowledges that his lowest score remains above 70. This establishes that his intellect functions above the level necessary for a finding of intellectual disability that precludes execution under Atkins. Henry s suggestion that Hall indicates that a SEM-adjusted score higher than 70 can still support a finding of intellectual disability is not supported by any reasonable interpretation of Hall. While Henry intimates that significant deficits in adaptive functioning may lead to a diagnosis of intellectual disability even when a valid IQ score is above 70, the Court in Hall did not eliminate the requirement that a defendant show 20

significant subaverage general intellectual functioning, defined by performance on a standardized intelligence test in order to establish a constitutional violation under Atkins. See 921.137(1), Fla. Stat.; Rule 3.203(b). In Hall, the Court considered a case where the SEM-adjusted score was 66, so the Hall opinion does not speak directly to the situation in Henry s case, where the SEM-adjusted score is no lower than 73. 3 In fact, the Court expressly observes that jurisdictions where a rigid cutoff score of 75 had been adopted were not at issue, and weighed those jurisdictions as contrary to Florida s rule in concluding that Florida s cutoff of 70 violated evolving societal standards. See Hall, 2014 WL 2178332 at 10 (2014). Hall acknowledges that a finding of intellectual disability to satisfy the Atkins bar to execution includes consideration of both intellectual functioning and adaptive functioning. Hall credits the established medical practice of considering IQ score as a range rather than a fixed number, but never suggests that even when the undisputed IQ range is above the level necessary 3 In his dissenting opinion in Hall v. Florida, 2014 WL 2178332, 9 (2014), (Alito, J., dissenting,) Justice Alito noted that: SEMs, however, vary by IQ test and test-taker, and there is no reason to assume a SEM of 5 points; indeed, it appears that the SEM is generally estimated to be three to five points for wellstandardized IQ tests. AAMR 10th ed.57. And we know that the SEM for Hall s most recent IQ test was 2.16 less than half of the Court s estimate of 5. 21

under the first prong of Florida s definition of intellectual disability that more severe deficits in adaptive functioning can somehow magically lower the IQ range to be within the standard for deficient intellectual functioning. See Hall, 2014 WL 2178332 at 9; and Alito, J., dissenting opinion at 18 ( The Court holds that if this range includes an IQ of 70 or below (the accepted level for intellectual disability), the defendant must be permitted to produce other evidence of intellectual disability in addition to IQ scores. ) Justice Alito is referring to a range as adjusted by the SEM, and Henry s SEMadjusted range is, at most, 73 to 83, and does not require an adaptive functioning assessment under Hall. His current argument to commingle the intellectual and adaptive functioning aspects of an intellectual disability diagnosis is not supported by any language or discussion in the Hall opinion. Even if intellectual disability could be considered in a judicial proceeding at this late date, Henry would still not be entitled to further relief. While Dr. Berland s 1986 report finding Henry s IQ to be 78 was relied upon in the motion and is urged to this Court as a basis for relief, Henry asks this Court to ignore the competency report submitted by the Governor s Commission on May 16, 2014 because he suggests It is not clear from their cursory three-page report whether this finding was 22

based solely on the IQ test or whether adaptive functioning was also considered. (IB p.26 n.4) The report completely refutes this position. The three psychiatrists, Drs. Werner, Myers and Taylor, who were appointed by Governor Rick Scott to assess Henry s competency for execution, interviewed Henry after extensively reviewing his records. The experts expressly considered whether Henry met the standard for intellectual disability as defined by the Diagnostic and Statistical Manual of Mental Disorders [DSM- 5], an authority noted with approval in Hall, 2014 WL 2178332 at 3 (2014). They observed that his clinical presentation during the evaluation was consistent with intellectual functioning at or above what would be predicted based on his prior IQ test result of 78 and that he was able to discuss the legal process accurately in reasonable depth. The doctors administered the Mini-Mental State Examination-2, a neuropsychiatric test used to assess for cognitive impairment which covers the areas of orientation, attention, calculation ability, recall, naming, repetition, comprehension, reading, writing, and visual-spatial skills. Henry scored in the average range per age group and educational level norms. (Supp. 2R. 111-13) The Commission report expressly notes that the doctors considered and rejected the possibility of an intellectual 23

disability by applying the definition of intellectual disability set forth in the DSM-5, a definition clearly meeting the Hall standard. Thus, it has already been determined that Henry is not intellectually disabled so as to preclude execution under the Eighth Amendment to the United States Constitution. Moreover, the report refutes Henry s claim that no evaluation has been done beyond reliance solely on a raw IQ score as the Commission clearly considered all of the DSM-5 criteria. Even without reference to the Commission report, Henry s substantive claim of disability is affirmatively refuted by the record. In addition to Dr. Berland s score of 78, the evidence in this case demonstrates that Henry has adequate adaptive functioning. Henry lived a typical adult life, able to drive a car, (DAR1 V5/797) maintain employment, (DAR2 V6/756, 768) develop personal relationships, participate in financial transactions, (DAR2 V6/762) and engage in goal directed behavior. His communication skills are demonstrated by the cogent arguments in his numerous pro se attempts to have counsel replaced and new counsel substituted. (DAR1 V6/873-874; DAR2 V7/872-874, 981-82) His actions do not reflect the necessary adaptive impairments to support a finding of intellectual disability as required by Section 921.137, Florida Statutes, and Rule 3.203. To the contrary, Henry s history reflects the types 24

of activities frequently cited in finding adequate adaptive functioning to defeat a claim of intellectual disability. See Hurst v. State, 2014 WL 1698370 at *8 (Fla. May 1, 2014) (Hurst was able to maintain a job, had acquired a driver s license, and made efforts to conceal his involvement in the crime); Diaz v. State, 132 So. 3d 93, 120-21 (Fla. 2013) (Diaz maintained a job, groomed himself, dressed appropriately, offered cooking instructions, supervised a young girl, and handled financial arrangements); Dufour v. State, 69 So. 3d 235, 248-51 (Fla. 2011) (Dufour handled the rent and accomplished household chores including laundry, cleaning his room, cooking lunch, washing dishes, and maintaining the yard; dressed appropriately, and independently accomplished proper hygiene activities such as brushing his teeth and showering); Hodges v. State, 55 So. 3d 515, 525, 533 (Fla. 2010) (Hodges held down jobs, drove a car extensive distances, had relationships with women, made change, shopped, cooked, and played sports; the trial court found he could function independently in the community and that he was capable socially, economically, and developmentally to function without significant assistance from others ); Foster v. State, 929 So. 2d 524, 531-33 (Fla. 2006) (Defendant was supporting himself and functioning on his own, albeit, by illegal drug sales; able to provide shelter and sustenance for another; with 25

communication skills, as evidenced by his meetings with his trial attorney and by his own testimony before this Court, which did not indicate significant limitations); Burns v. State, 944 So. 2d 234 (Fla. 2006) (outlining prerequisites for finding of intellectual disability as a bar to execution). Therefore, Hall does not assist Henry either procedurally or substantively. Accordingly, Hall s request for a determination as to any alleged intellectual disability was properly rejected, and this Court should affirm the denial of relief. 26

RESPONSE TO MOTION FOR STAY OF EXECUTION Henry s brief includes a perfunctory request for a stay of execution. Rule 3.203(i) expressly provides that the filing of a motion under that rule shall not stay further proceedings without a separate order staying execution. As both this Court and the United States Supreme Court have held, a defendant must show that he has presented substantial grounds for relief from his conviction and sentence in order to be entitled to a stay. See Buenoano v. State, 708 So. 2d 941, 951 (Fla. 1998); see also Delo v. Stokes, 495 U.S. 320, 321 (1990); Barefoot v. Estelle, 463 U.S. 880, 895 (1983); Bowersox v. Williams, 517 U.S. 345 (1996). As argued in the response, Henry s motion does not offer any basis for a stay. He has simply requested an opportunity to explore an issue long ago abandoned, which is refuted by the record. All relief, including a stay of execution, should be denied. 27

CONCLUSION WHEREFORE, the State respectfully requests that this Honorable Court AFFIRM the denial of the Rule 3.203 motion and DENY a stay of execution. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL s/ Candance M. Sabella CANDANCE M. SABELLA Chief Assistant Attorney General Capital Appeals Bureau Chief Florida Bar No. 0445071 candance.sabella@myfloridalegal.com capapp@myfloridalegal.com s/ Carol M. Dittmar CAROL M. DITTMAR Senior Assistant Attorney General Florida Bar No. 0503843 carol.dittmar@myfloridalegal.com capapp@myfloridalegal.com Office of the Attorney General Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 COUNSEL FOR APPELLEE 28

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished electronically to the Clerk of the Florida Supreme Court at warrant@flcourts.org; and to Baya Harrison, III, Esquire, 736 Silver Lake Road, P.O. Box 102, Monticello, Florida 32345, bayalaw@aol.com; Manuel Garcia, Assistant State Attorney, 38053 Live Oak Ave., Dade City, Florida 33525-3881, mgarcia@co.pinellas.fl.us; and Damien Kraebel, Assistant State Attorney, P.O. Box 5028, Clearwater, Florida 33538-5028, dkraebel@co.pinellas.fl.us, on this 5th day of June, 2014. CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P. 9.210(a)(2). s/ Candance M. Sabella COUNSEL FOR APPELLEE 29