IN THE SUPREME COURT OF FLORIDA ROBERTHENRY, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) CASE NO. SC12-2467 L.T. NO. 87-18628CF10A REPLY 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 475841 500 Southwest Third Street Fort Lauderdale, Florida 33315 Telephone (954) 761-9411 Facsimile (954) 767-4750 Attorneyfor Appellant
TABLE OF CONTENTS TABLEOFCONTENTS... ii TABLEOF AUTHORITIES... iii STATEMENTCONCERNINGORAL ARGUMENT...1 STANDARDOFREVIEW......2 ARGUMENT: THE TRIAL COURT ERRED IN SUMMARILY DENYING POSTCONVICTION RELIEF WITHOUT EVIDENTIARY HEARING AS ITS ALLEGATIONS ARE NOT CONCLUSIVELY REFUTED BY THE RECORD... 3 CONCLUSION... 9 CERTIFICATE OF SERVICE.................................. 10 CERTIFICATEOFFONT ANDTYPESIZE...10 11
Cases TABLE OF AUTHORITIES Page(s) jlmendments to Fla. Rules ofcrim. P. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n.2 (Fla. 2000)................................ 2 Cone v. Bell, 556 U.S. 449, 475, 129 S. Ct. 1769, 1786 (2009)............... 9 Connor v. State, 979 So. 2d 852, 868 (Fla. 2007).......................... 2 Duckett v. State, 918 So. 2d 224 (Fla. 2005).............................. 1 Jones v. State, 709 So.2d 512 (Fla. 1998)........................... 2 n.2, 3 Lambrix v. State, 39 So. 3d 260 (Fla. 2010)............................. 1 Lightbourne v. State, 742 So. 2d 238 (Fla. 1999).......................... 1 Marek v. State, 14 So. 3d 985 (Fla. 2009)................................ 1 Mills v. Moore, 786 So. 2d 532 (Fla. 2001)............................... 1 Roberts v. State, 840 So. 2d 962 (Fla. 2002).............................. 1 Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006)..................... 5 Smith v. State, 75 So. 3d 205 (Fla. 2011)................................ 6 Sochor v. State, 883 So. 2d 766, 771-772 (Fla. 2004)....................... 2 Swafford v. State, 828 So. 2d 966 (Fla. 2002)............................. 1 Williams v. Taylor, 529 U.S. 362, 393, 120 S. Ct. 1495 (2000)............... 9 Wright v. State, 857 So. 2d 861 (Fla. 2003).............................. 1 Ill
TABLE OF AUTHORITIES (CONTINUED) Court Rules Page(s) Rule 3.851, Florida Rules of Criminal Procedure......................... 3 Other Authorities Public Policy Statement: Short Definition ofaddiction (ASAM 2011 ).... 4 n.3, 8 Black's Law Dictionary (9th ed. 2009)................................... 4 lv
STATEMENT CONCERNING ORAL ARGUMENT Appellant submits this case requires oral argument as the trial court misapplied this Court's existing precedent concerning newly discovered evidence, the central issue possesses potentially wide-ranging consequences, and the Court has allowed oral argument on appeal from denials of successive motions to vacate. Lambrix v. State, 39 So. 3d 260 (Fla. 2010); Marek v. State, 14 So. 3d 985 (Fla. 2009); Duckett v. State, 918 So. 2d 224 (Fla. 2005); Wright v. State, 857 So. 2d 861 (Fla. 2003); Roberts v. State, 840 So. 2d 962 (Fla. 2002); Swafford v. State, 828 So. 2d 966 (Fla. 2002); Mills v. Moore, 786 So. 2d 532 (Fla. 2001); Lightbourne v. State, 742 So. 2d 238 (Fla. 1999). A full opportunity to air the issues through oral argument would be appropriate in this case given the seriousness of the claims. Appellant thus urges the Court permit oral argument. 1
STANDARD OF REVIEW The case cited by the State concerning the appropriate standard of review, Sochor v. State, 883 So. 2d 766, 771-772 (Fla. 2004) (prescribing de novo review), dealt with the standard of review on appeal from denial after an evidentiary hearing on a claim of ineffective assistance of counsel, rather than the standard of review on appeal--as here--from the trial court's summary denial of postconviction relief without holding an evidentiary hearing on a claim of newly discovered evidence. Such a claim may be summarily denied only if it is "legally insufficient, should have been brought on direct appeal, or [is] positively refuted by the record," Connor v. State, 979 So. 2d 852, 868 (Fla. 2007), accepting its factual allegations as true, and affirming only if filings show it has failed to state a facially sufficient claim or there is no issue of material fact to be determined. See Amendments to Fla. Rules of Crim. P. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n.2 (Fla. 2000). If there is any question whether a facially sufficient claim requires a factual determination, this Court should presume an evidentiary hearing is required. Id. 2 Newly discovered evidence is evidence: (1) that was not known to the trial court, the party or his counsel at the time of trial that the movant or his counsel could not have known of through diligence, and (2) of such a nature that it would probably now lead to a less severe sentence. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). 2
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 his death sentence alleges the existence of newly discovered evidence concerning the genesis and nature of "addiction" manifest by the American Society of Addiction Medicine's (ASAM's) substantial advances in the science of addiction medicine, comprising newly discovered evidence which, in conjunction with his addiction at the time of the crime, demonstrates Henry had a brain disease unknown at the time of trial, creating the probability he would receive a less severe sentence at a new penalty proceeding using this new empirical evidence concerning his ability to premeditate in mitigation against the death penalty, and entitling him to an evidentiary hearing pursuant to Rule 3.851, and Jones v. State, 709 So.2d 512, 521 (Fla. 1998). Though the State makes argument on appeal that "the 'ASAM' (sic) is not evidence in any sense of the legal term and therefore cannot, qualify as 'newly discovered evidence,'" State's Answer Brief pages 11-12, the State cites no 3
authority for its contention that the ASAM materials do not comprise "evidence" or a valid proffer for the presentation of such "evidence" at evidentiary hearing.3 Black's Law Dictionary defines the term "evidence" itself as follows: [E]vidence, n. (14c) 1. Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact. Black's Law Dictionary (9th ed. 2009). 3 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 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 of Addiction (ASAM 2011). Available on the web [last accessed 11 March 2013] at: http://www.asam.org/docs/publicypolicy-statements/1definition of addiction long_4-11.pdf?sfvrsn=2 4
As the proffered materials fall well within the legal definition of "evidence" by "tend[ing] to prove or disprove" addiction is a brain disease, the State's premise (that "the 'ASAM' (sic) is not evidence in any sense of the legal term") is no more plausible than its conclusion (that the material "therefore cannot, qualify as 'newly discovered evidence'"). State 's Answer Brief pages 11-12. As the State's premise for its conclusion is as questionable as its conclusion, its argument is unsound. A problem with the State's analogy to the ABA report erroneously relied upon as comprising newly discovered evidence in Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006), State 's Answer Brief: pages 12-14, 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 definition 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 about what "addiction" means on a scientific level which, in its final form, comprises new evidence which could not have been discovered by a court, defendant or attorney using diligence because, using due diligence, they would have been advised by experts to the contrary. 5
Instead, this case is more closely analogous to Smith v. State, 75 So. 3d 205 (Fla. 2011), wherein the trial court had summarily denied a defendant's allegation that "letters from the Federal Bureau of Investigation regarding expert testimony on comparative bullet lead analysis" comprised newly discovered evidence, and this Court held such a claim warranted an evidentiary hearing. 75 So. 3d at 205. The State next contends, in an attempt to argue for a procedural bar, that "this Court has previously considered and rejected this identical evidence during the appeal from the denial of his first motion for postconviction relief," noting that, "[a]t that time, Henry presented evidence of drug addiction during litigation of his claim that trial counsel was ineffective for failing to present evidence of chronic drug use and drug use at the time of the crimes at the penalty phase." State 's Answer Brief page 15. A fatal flaw in the State's notion that evidence proffered in the present motion is "identical" to evidence in the initial motion, and attempts to re-litigate the same ground, State's Answer Brief page 15, is a chronological one, as the evidence at issue in Mr. Henry's present motion first appeared in 2011. In an effort to bolster its earlier argument that the evidence proffered in the present motion does not constitute newly discovered evidence, the State notes that Mr. Henry's "final amendment to his first motion for postconviction relief was 6
filed in 1998 and the evidentiary hearing was not completed until late 2001," arguing that "[c]learly, Henry could have obtained any information upon which the ASAM relied at any point between 1998-2001, which was clearly within the two decades referenced in the material." State's Answer Brief: page 15 n.2. A major problem with the State's argument in this regard is that the evidence on which Mr. Henry's present motion relies first became widely accepted in the scientific community in 2011. The State's notion that raw data which eventually culminated in the landmark scientific recognition that addiction is a brain disease (rather than a matter of volition) could have been used to raise similar claims under the facts in the present case prior to its acceptance in the scientific community is analogous to arguing that DNA misidentification claims in a particular case could have been raised at a time prior to the development of an accepted DNA test. The State's notion that evidence proffered in Mr. Henry's present motion is "not material" since he did not present any evidence of his drug addiction at trial,4 4 Henry reasonably avoided a voluntary intoxication defense at the time of trial to avoid introduction of collateral crime evidence, such as smoking crack cocaine on the day of the crimes, because--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 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-reasonably caused Henry to resist its introduction. 7
since his trial testimony contradicted his post-arrest confession, and since "overwhelming evidence of premeditation obliterated any claim that Henry's alleged mitigation of intoxication at the time of the murders would have resulted in a less sever (sic) sentence," State's Answer Brief: pages 16-17, misapprehends the nature of the present claim and the potential effect of this evidence on sentencing. Nowhere has Henry's motion "alleged mitigation of intoxication at the time of the murders." Id. Instead, it alleges the scientific community repudiated its earlier claim that addiction was a matter of volition, and newly announced addiction is a brain disease, comprising newly discovered evidence bearing on evidence of premeditation that probably would have resulted in a lesser sentence. More specifically, the evidence proffered in Henry's motion consists of the proposition--only recently accepted in the scientific community--that addiction is a "primary, chronic disease of brain reward, motivation, memory and related circuitry...characterized by...impairment in behavioral control, craving, diminished recognition of significant problems with one's behaviors and interpersonal relationships, and a dysfunctional emotional response." Public Policy Statement: Short Definition of Addiction (ASAM 2011), supra. The foregoing scientific description of the disease directly impacts the nature and extent of premeditation. 8
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. 1495 (2000). The United States Supreme Court has noted the mitigating nature of drug addiction by a capital defendant. Cone v. Bell, 556 U.S. 449, 129 SCt. 1769, 1786 (2009). The newly discovered scientific evidence raised in Henry's motion to vacate concerning the cause and nature of addiction-so at odds with evidence available at the time of Henry's trial--could have countered the argument made by the State concerning premeditation, and would have provided a basis for the jury and court to consider the mitigating nature of Henry's addiction which "may well have been material to the [court's] assessment of the proper punishment in this case...." Id. CONCLUSION The trial court's summary denial without evidentiary hearing of Mr. Henry's motion to vacate alleging newly discovered evidence concerning the scientific community's redefinition of chronic addiction as a brain disease, which went directly to the degree he was able to premeditate, was unjustified under the facts. The trial court's order denying the motion to vacate should therefore be reversed and remanded for an evidentiary hearing at which Mr. Henry may prove his claims. 9
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. 228th Street, Raiford, FL 32026, by United States Mail, this M.-7 day of March, 2013. 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 33315 Tel. (954) 761-9411 Fax (954) 767-750 By: 1(evin J. Kulik, Esquire Florida Bar No. 475841 10