Click here to load reader

Appellant, ) - · PDF fileFlorida Rules of Criminal Procedure, alleging newly discovered evidence, the denial ofwhich is at issue in the present appeal (R 23). Mr. Henry's motion to

  • View
    213

  • Download
    0

Embed Size (px)

Text of Appellant, ) - · PDF fileFlorida Rules of Criminal Procedure, alleging newly discovered...

  • IN THE SUPREME COURT OF FLORIDA

    ROBERT HENRY, ) )

    Appellant, ) )

    v. ) ) CASE NO. SC12-2467

    STATE OF FLORIDA, ) L.T. NO. 87-18628CF10A )

    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 475841 500 Southwest Third Street Fort Lauderdale, Florida 33315 Telephone (954) 761-9411 Facsimile (954) 767-4750

    AttorneyforAppellant 1

  • TABLEOFCONTENTS

    TABLEOFCONTENTS ............................................. ii

    TABLEOF AUTHORITIES ......................................... iii

    PRELIMINARYSTATEMENT ........................................1

    JURISDICTIONAL STATEMENT .....................................1

    STANDARDOFREVIEW.............. ..............................1

    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 ............................................................... 10

    CONCLUSION.....................................................17

    CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

    CERTIFICATEOFFONTANDTYPESIZE.............................17

    11

  • TABLE OF AUTHORITIES Cases Page(s)

    Cone v. Bell, 556 U.S. 449, 475, 129 S. Ct. 1769, 1786 (2009) . . . . . . . . . . . 13-16

    Espinoza v. Florida, 505 U.S. 1079, 112 S.Ct. 2926 (1992) . . . . . . . . . . . . . . . . . . 4

    Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021 (1992) . . . . . . . . . . . . . . . . . . 3, 4

    Henry v. Florida, -- U.S. --, 114 S.Ct. 699 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 4

    Henry v. Florida, -- U.S. --, 130 S.Ct. 2367 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 5

    Henry v. McNeil, Case No. 07-CV-61281 (S.D. Fla. 2009) . . . . . . . . . . . . . . . . . . 5

    Henry v. State, 586 So. 2d 1033 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

    Henry v. State, 613 So. 2d 429, 434 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

    Henry v. State, 937 So. 2d 563 (Fla. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

    Henry v. State, 43 So. 3d 690 (Fla. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

    Jones v. State, 709 So.2d 512, 521 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10

    Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006) . . . . . . . . . . . . . . . . . . . . 12

    Williams v. Taylor, 529 U.S. 362, 393, 120 S. Ct. 1495 (2000) .. . . . . . . . . . . . . . 13

    Constitutions

    Art. V, § 3(b)(1), Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

    111

  • TABLE OF AUTHORITIES (CONTINUED)

    Statutes Page(s)

    §782.04, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

    §812.13, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

    §806.01, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

    Federal Code

    28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

    Court Rules

    Rule 3.851, Florida Rules of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . 5, 10

    Rule 3.853, Florida Rules of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

    Other Authorities

    Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report September 17, 2006 . . . . . . . . . . 1 2

    Public Policy Statement: Short Definition ofAddiction (ASAM 2011 ) . . . . . 10-11

    1V

  • 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

  • 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

    §782.04, Fla. Stat. He was also charged with armed robbery contrary to §812.13,

    Fla. Stat., and arson, contrary to §806.01, 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

  • 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, 1034-35 (Fla. 1991) cert. granted, judgment

    vacated, 505 U.S. 1216, 112 S. Ct. 3021 (1992).

    3

  • 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. 2926 (1992).

    Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021 (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 aggrava

Search related