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 theSeventeenth Judicial Circuit in and

for Broward County, Florida

KEVIN J. KULIK, ESQUIREFlorida Bar Number 475841500 Southwest Third StreetFort Lauderdale, Florida 33315Telephone (954) 761-9411Facsimile (954) 767-4750

AttorneyforAppellant1

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 DENYINGPOSTCONVICTION RELIEF WITHOUT EVIDENTIARYHEARING AS ITS ALLEGATIONS ARE NOT CONCLUSIVELYREFUTED BY THE RECORD............................................................... 10

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

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

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

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TABLE OF AUTHORITIESCases 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

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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).

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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 theresultant death sentences as well as the two concurrent terms of lifeimprisonment for armed robbery with a deadly weapon and arson. Wehave jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm theconvictions and sentences.

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Around 9:30 p.m. on November 1, 1987 fire fighters and policeofficers responded to a fire at a fabric store in Deerfield Beach. Insidethey found two of the store's employees, Phyllis Harris, tied up in themen's restroom, and Janet Thermidor, on the floor of the women'srestroom. Each had been hit in the head with a hammer and set on fire.Harris was dead when found. Although suffering from a head woundand burns over more than ninety percent of her body, Thermidor wasconscious. After being taken to a local hospital, she told a policeofficer that Henry, the store's maintenance man, had entered theoffice, hit her in the head, and stolen the store's money. Henry thenleft 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 thefire. She died the following morning.

Based on Thermidor's statement, the police began looking forHenry and found him shortly before 7:00 a.m. on November 3, atwhich time they arrested him. Henry initially claimed that threeunknown men robbed the store and abducted him, but later madestatements incriminating himself. A grand jury indicted Henry for twocounts of first-degree murder, armed robbery, and arson. The juryconvicted him as charged and recommended the death sentence foreach of the murders, which the trial court imposed.

After being arrested, Henry made a total of six oral and tapedstatements. In the first two he claimed that unknown robbers forcedtheir way into the store and denied any personal involvement. In theother 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).

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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 againstHenry 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 histrial court gave, an expanded instruction defining the terms of andlimiting the applicability of this aggravator. Thus, the instructiongiven to Henry's jury was not unconstitutionally vague, and wereaffirm his death sentences.

Henry v. State, 613 So. 2d 429, 434 (Fla. 1992). A petition for writ of certiorari

was denied January 10, 1994. 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, 2006. 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.

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Henry sought belated appeal of the denial of his Rule 3.853 motion, which this

Court dismissed February 24, 2010. 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, 2010. The United States Supreme Court denied

certiorari on April 5, 2010. Henry v. Florida, -- U.S. -, 130 S.Ct. 2367 (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

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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).

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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 sentencebased on newly discovered evidence. Attached to Defendant's motionas Exhibit I are the following documents: (1) a press release regardingASAM's new definition of addiction as a chronic brain disease; (2)ASAM's public policy statement providing a short definition ofaddiction; (3) ASAM's public policy statement providing a short andlong definition of addiction; and (4) a document containing answers tofrequently asked questions regarding the new definition of addiction.These documents contain a policy decision made by ASAM toelaborate a new definition of addiction. The new definition is basedon two decades of advancements in neurosciences that would take intoaccount what was actually happening in a person's brain, as opposedto explaining addiction by focusing on the substances associated withit. As correctly pointed out by the State in its response, these policystatements 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 AmericanBar 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'sdeath penalty system and consists of legal analysis andrecommendations for reform, many of which are directed to theexecutive and legislative branches.").

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(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.

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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.

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ARGUMENT

THE TRIAL COURT ERRED IN DENYINGWITHOUT EVIDENTIARY HEARING HENRY'SMOTION TO VACATE HIS DEATH SENTENCEBASED ON NEWLY DISCOVERED SCIENTIFICEVIDENCE IN MITIGATION THAT WOULDPROBABLY 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 tocharacteristic biological, psychological, social and spiritual

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manifestations. This is reflected in an individual pathologicallypursuing 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 ofsignificant problems with one's behaviors and interpersonalrelationships, and a dysfunctional emotional response. Like otherchronic diseases, addiction often involves cycles of relapse andremission. Without treatment or engagement in recovery activities,addiction is progressive and can result in disability or prematuredeath.

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 sentencebased on newly discovered evidence. Attached to Defendant's motionas Exhibit I are the following documents: (1) a press release regardingASAM's new definition of addiction as a chronic brain disease; (2)ASAM's public policy statement providing a short definition ofaddiction; (3) ASAM's public policy statement providing a short andlong definition of addiction; and (4) a document containing answers tofrequently asked questions regarding the new definition of addiction.These documents contain a policy decision made by ASAM toelaborate a new definition of addiction. The new definition is basedon two decades of advancements in neurosciences that would take intoaccount what was actually happening in a person's brain, as opposedto explaining addiction by focusing on the substances associated with

2 Available on the internet at: http://www.asam.org/docs/publicy-policy-statements/1definition _of addiction_long_4-11.pdf?sfvrsn=2

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it. As correctly pointed out by the State in its response, these policystatements 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 AmericanBar 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'sdeath penalty system and consists of legal analysis andrecommendations for reform, many of which are directed to theexecutive 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 ofofficial statements to the contrary. The new ASAM definition of

"addiction" represents an upheaval in the scientific community's factual statements

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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. 1495

(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

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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

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 452-453, 129 S.Ct. at 1773.

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 1774. 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

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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 1786.

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.

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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 ofFebruary, 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 AvenueFort Lauderdale, Florida 33315Tel. (954) 761-9411Fax (954) 767-4750

By: K s

Florida Bar No. 475841

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