Robert L. Henry v. State of Florida

Supreme Court of Florida
____________

No. SC14-398
____________

ROBERT L. HENRY,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[March 14, 2014]

PER CURIAM.

Robert Henry is a prisoner under sentences of death for whom a death

warrant has been signed and execution set for March 20, 2014. In 1988, Henry

was convicted of the first-degree murders of Phyllis Harris and Janet Thermidor,

armed robbery with a deadly weapon, and arson. Henry now appeals the denial of

his second successive motion for postconviction relief, filed under Florida Rule of

Criminal Procedure 3.851; the denial of his motion to declare section 922.052,

Florida Statutes (2013), unconstitutional; and his motion to dismiss his death

warrant. For the reasons explained below, we affirm the postconviction court‟s
denial of relief. In addition, we deny Henry‟s motion for a stay of execution, filed

March 12, 2014.

I. BACKGROUND

On November 1, 1987, Henry tied up his coworkers Harris and Thermidor,

hit each of them on the head with a hammer, and set them on fire. Harris was

found dead, but Thermidor survived until the next day and identified Henry as the

perpetrator. When interviewed by law enforcement officers, Henry initially

claimed that he was forced to attack his coworkers by unknown robbers but later

confessed that he acted alone. Henry v. State, 613 So. 2d 429, 430-31 (Fla. 1992).

The jury recommended a death sentence for the murder of Harris by a vote

of eight to four and for the murder of Thermidor by a vote of nine to three. The

trial court imposed a life sentence for the armed robbery, a life sentence for the

arson, and a death sentence for each murder. In imposing death sentences for both

murders, the trial court concluded that five aggravating factors were applicable to

each murder: (1) the murder was committed during the commission of a robbery

and arson; (2) the murder was committed to avoid arrest; (3) the murder was

committed for pecuniary gain; (4) the murder was especially heinous, atrocious, or

cruel (HAC); and (5) the murder was committed in a cold, calculated, and

premeditated manner (CCP). Despite Henry‟s decision to waive the presentation

of mitigating evidence, the trial court also found two mitigating factors: (1) Henry

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had no significant prior criminal history; and (2) Henry served in the United States

Marine Corps. State v. Henry, No. 88-18628 CF 10 (Fla. 17th Jud. Cir. Ct. order

filed Nov. 9, 1988).

On direct appeal, Henry argued that: (1) the trial court erred in partially

denying Henry‟s motion to suppress his statements; (2) the trial court erred in

denying Henry‟s motion to suppress Thermidor‟s statement; (3) the trial court

erred by failing to give an instruction on duress; (4) a discovery violation occurred;

(5) the prosecutor made improper comments; (6) Florida‟s rule requiring a

defendant to forego presenting witnesses to preserve first and last arguments is

unconstitutional; (7) the presentation of victim impact evidence was improper; (8)

the trial court erred by admitting irrelevant and cumulative photographs; (9) the

State presented false testimony; (10) the trial court erred by allowing the State to

argue alternative theories of premeditated and felony murder; (11) the trial court

applied the wrong standard of proof to the mitigating factors and erred by allowing

Henry to waive the presentation of mitigating evidence; (12) the trial court gave

improper penalty phase instructions; (13) the aggravating factors were not

established beyond a reasonable doubt or were unconstitutional, and the trial court

considered nonstatutory aggravating factors; (14) Florida‟s death penalty scheme is

unconstitutional; (15) Henry‟s right to be present during all stages of the trial was

violated; (16) the presentence investigation report violated Henry‟s rights under the

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Confrontation Clause of the United States Constitution; and (17) the trial court

erred by departing from the sentencing guidelines when sentencing Henry on the

arson and robbery convictions.

In Henry v. State, 586 So. 2d 1033, 1034-35 (Fla. 1991), this Court

concluded that each of Henry‟s claims was without merit or unpreserved and

affirmed the convictions and sentences. That decision was vacated, however, by

the United States Supreme Court in Henry v. Florida, 505 U.S. 1216 (1992). The

Supreme Court remanded Henry‟s case to this Court for further consideration in

light of Espinosa v. Florida, 505 U.S. 1079 (1992) (concluding that the standard

jury instruction given on the HAC aggravating factor was unconstitutionally

vague), and Sochor v. Florida, 504 U.S. 527 (1992) (concluding that the defendant

failed to preserve for appeal his argument that the standard jury instruction given

on the HAC aggravating factor was unconstitutional). On remand, this Court

issued a revised opinion and again affirmed Henry‟s convictions and sentences.

This Court explained that although Florida‟s former standard jury instruction on

the HAC aggravating factor had been determined to be unconstitutional, in Henry‟s

case, the trial court gave an expanded instruction that was not unconstitutionally

vague. Henry, 613 So. 2d at 434.

In 1998, Henry filed an amended initial motion for postconviction relief,

raising fifty-one claims, which was denied by the postconviction court. Henry

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appealed and filed a petition for a writ of habeas corpus. This Court affirmed the

denial of Henry‟s postconviction motion; determined that the postconviction court

did not commit reversible error by limiting the evidentiary hearing to the

deficiency prong of Strickland v. Washington, 466 U.S. 668 (1984); and concluded

that “only the postconviction claims that were considered at the evidentiary hearing

merit discussion.” Henry v. State, 937 So. 2d 563, 568 (Fla. 2006). Those claims

were: (1) trial counsel was ineffective for failing to develop a mitigation strategy

that emphasized Henry‟s drug addiction; (2) trial counsel was ineffective for

failing to follow Henry‟s initial psychological screening with a full mental health

mitigation evaluation; and (3) Henry‟s waiver of the presentation of mitigating

evidence was not knowingly and intelligently made due to trial counsel‟s

inadequate penalty phase investigation. Id. at 571-75. This Court also denied

Henry‟s habeas petition, which alleged that: (1) appellate counsel failed to raise

numerous meritorious issues due to the page number limitation imposed on

appellate briefs; (2) appellate counsel failed to raise claims on direct appeal

concerning the record being incomplete and the need for a change of venue; and

(3) the constitutionality of the indictment must be revisited in light of Ring v.

Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

In 2003, Henry filed a motion for postconviction DNA testing under Florida

Rule of Criminal Procedure 3.853. That motion was denied in October 2007, and

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Henry failed to file a timely appeal. In 2008, Henry filed a motion for belated

appeal, which was treated as a petition for a writ of habeas corpus. This Court

relinquished jurisdiction to the circuit court to determine if a belated appeal was

warranted. The circuit court concluded that Henry was not entitled to a belated

appeal, and in 2010, this Court denied Henry‟s petition. Henry v. State, 43 So. 3d

690 (Fla. 2010) (Table).

In 2007, Henry filed a petition for a writ of habeas corpus in the United

States District Court for the Southern District of Florida. Henry raised six claims:

(1) the trial court erred by admitting Henry‟s statements; (2) trial counsel was

ineffective for failing to attach the search warrant used to obtain incriminating

evidence; (3) the trial court erred by admitting victim Thermidor‟s statement; (4)

the trial court erred by failing to allow DNA testing of a beer can found at the

crime scene; (5) appellate counsel was ineffective; and (6) Henry‟s death sentences

are excessive. While his habeas petition was pending, Henry filed a motion to hold

his habeas petition in abeyance in order to litigate some of his claims in state court,

a pro se supplemental motion to hold his petition in abeyance, and a motion to stay.

On March 19, 2009, the federal court issued an order denying Henry‟s motions.

The federal court concluded that several of Henry‟s claims had not been exhausted

in the state courts and that Henry failed to establish the requirements for a stay and

abeyance to finish litigating those claims. The federal court thus ruled that unless

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Henry withdrew his unexhausted claims by April 1, 2009, his habeas petition

would be dismissed. Henry v. McDonough, No. 07-61281-CIV-HUCK, 2009 WL

762219 (S.D. Fla. Mar. 19, 2009).

In 2012, Henry filed a pro se successive motion for postconviction relief,

alleging that newly discovered evidence will show that his chronic drug addiction

is now scientifically recognized as a brain disease. The postconviction court

summarily denied the motion, and this Court affirmed the denial. Henry v. State,

125 So. 3d 745, 752 (Fla. 2013).

Most recently, following the signing of his death warrant on February 13,

2014, Henry filed a second successive postconviction motion. Henry alleged that

Florida‟s lethal injection protocol is unconstitutional because: (1) midazolam

hydrochloride (midazolam) should not be used as the first drug of the protocol; (2)

due to Henry‟s specific health concerns, the use of midazolam creates a substantial

risk of harm to him; (3) the consciousness check in the protocol is inadequate; (4)

the execution team is inadequately trained and might not follow the protocol; (5) a

one-drug protocol does not pose the same risk of causing pain as the current three-

drug protocol. Henry later amended his motion to add more detail regarding his

as-applied challenge to Florida‟s lethal injection protocol and to add a claim that

Henry‟s death sentences violate the Eighth Amendment of the United States

Constitution because the jury recommendations were nonunanimous. In addition,

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Henry filed: (1) a motion arguing that section 922.052—as amended by the Timely

Justice Act (Act), ch. 2013-216, §§ 1-9, at 2596-2613, Laws of Fla.—is both

facially unconstitutional and unconstitutional as applied to Henry; and (2) a motion

to dismiss his death warrant, asserting that the warrant was fatally defective for not

stating a time of execution. On February 26, 2014, the postconviction court denied

Henry‟s amended motion for postconviction relief, his motion to declare section

922.052 unconstitutional, and his motion to dismiss the death warrant.

Regarding the first part of Henry‟s as-applied challenge, the postconviction

court reasoned that Henry‟s claim that due to his mental health, the use of

midazolam would create a substantial risk of serious harm was insufficiently

pleaded. The postconviction court explained that Henry‟s motion did not allege

what mental health disorder Henry suffers from or how, as a result of that disorder,

Henry would react to an injection of midazolam.

The postconviction court also rejected the second part of Henry‟s as-applied

challenge—his claim that due to his hypertension, high cholesterol level, and

coronary artery disease, the use of midazolam creates a substantial risk of serious

harm. The postconviction court reasoned that while Henry presented an affidavit

and an amended affidavit by Dr. Zivot that supported Henry‟s allegations that the

injection of midazolam may cause Henry to experience an acute coronary event,

Henry did not proffer any evidence that he “will be conscious at the onset of the

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acute coronary event” or “that midazolam will not have the intended effect of

rendering Defendant unconscious and insensate, and cause him to experience an

acute coronary event while conscious.” State v. Henry, No. 87-018628CF10A at

10 (Fla. 17th Jud. Cir. Ct. order filed Feb. 26, 2014).

The postconviction court concluded that each of Henry‟s remaining

challenges to Florida‟s lethal injection protocol should be denied because the

claims have been rejected by this Court in Howell v. State, 39 Fla. L. Weekly S89

(Fla. Feb. 28, 2014), cert. denied, 2014 WL 727245 (2014), and Muhammad v.

State, 38 Fla. L. Weekly S919 (Fla. Dec. 19, 2013), cert. denied, 134 S. Ct. 894

(2014). And citing Kimbrough v. State, 125 So. 3d 752 (Fla.), cert. denied, 134 S.

Ct. 632 (2013), and Mann v. State, 112 So. 3d 1158 (Fla. 2013), the postconviction

court denied Henry‟s claim that his death sentences are unconstitutional as a result

of nonunanimous jury recommendations.

In a separate order, the postconviction court denied Henry‟s motion to

declare section 922.052 unconstitutional. The postconviction court concluded that

because the Office of Executive Clemency began Henry‟s clemency proceeding

before the passage of the Act, Henry‟s motion should be denied under Muhammad,

in which this Court declined to reach Muhammad‟s constitutional challenge to

section 922.052. In a third order, the postconviction court denied without

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discussion Henry‟s motion to dismiss his death warrant. State v. Henry, No. 87-

018628CF10A (Fla. 17th Jud. Cir. Ct. order filed Feb. 26, 2014).

Henry appealed in this Court, raising three claims. Henry argued that the

postconviction court erred by denying his motion to declare section 922.052

unconstitutional, denying his motion to dismiss his death warrant, and summarily

denying his as-applied challenge to the lethal injection protocol.

After considering Henry‟s argument and the State‟s response, on March 6,

2014, this Court relinquished jurisdiction to the postconviction court in order to

conduct an evidentiary hearing on Henry‟s as-applied challenge to Florida‟s lethal

injection protocol. On March 10, 2014, the postconviction court held an

evidentiary hearing, during which both Henry and the State called medical experts

to testify about the likely effect on Henry of intravenous administration of 500

milligrams of midazolam. On March 11, 2014, the postconviction court again

denied Henry‟s as-applied challenge.

In addition to his claims on appeal regarding his motion to declare section

922.052 unconstitutional and his motion to dismiss the death warrant, Henry now

appeals the denial of his claim that Florida‟s lethal injection protocol is

unconstitutional as applied to him and has filed a motion for stay of execution. For

the reasons expressed below, we affirm the postconviction court‟s denial of relief

and deny Henry‟s motion for a stay of execution.

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 II. ANALYSIS

A. Motion to Declare Section 922.052 Unconstitutional

In his first issue on appeal, Henry argues that section 922.052, as amended

by the Act, violates the Separation of Powers Clause of the Florida Constitution,

art. II, § 3, Fla. Const., by limiting the Governor‟s discretion to grant clemency and

sign death warrants. The determination of a statute‟s constitutionality is a question

of law subject to de novo review. See Graham v. Haridopolos, 108 So. 3d 597,

603 (Fla. 2013). In this case, the postconviction court did not err by relying on

Muhammad—in which this Court declined to reach a similar constitutional

challenge to section 922.052—to deny Henry‟s motion.

In his initial brief, Henry concedes that his clemency proceeding began in

February 2012, whereas the Florida Legislature did not pass the Act until April

2013, and the Governor did not sign it into law until June 2013. As in

Muhammad‟s case, after the passage of the Act, the Governor could have chosen to

continue, rather than complete, Henry‟s clemency proceeding. Furthermore, after

signing a death warrant, the Governor retains statutory authority to stay Henry‟s

execution if he chooses to do so. See § 922.06(1), Fla. Stat. (2013) (“The

execution of a death sentence may be stayed only by the Governor or incident to an

appeal.”). Based on the foregoing, as in Muhammad‟s case, this Court cannot

conclude that Henry‟s “death warrant would not have been signed but for the Act.”

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Muhammad, 38 Fla. L. Weekly at S925. Thus, the postconviction court did not err

in denying Henry‟s motion to declare section 922.052 unconstitutional.

B. Motion to Dismiss Death Warrant

In his second issue on appeal, Henry contends that the postconviction court

erred by denying his motion to dismiss his death warrant. Henry asserts that the

plain language of sections 922.052(2)(b) and 922.052(3) requires the time of

execution to be “designated in the warrant” and that his execution cannot proceed

because the warrant in his case does not designate a time of execution. A trial

court‟s ruling on a motion to dismiss and the interpretation of a statute are both

legal questions subject to de novo review. See Jackson v. Shakespeare Found.,

Inc., 108 So. 3d 587, 592 (Fla. 2013); Tasker v. State, 48 So. 3d 798, 804 (Fla.

2010). The postconviction court did not err in denying the motion to dismiss.

On February 13, 2014, Governor Scott signed Henry‟s death warrant. The

Governor sent a document titled “Death Warrant” to Warden Palmer along with a

cover letter. While the “Death Warrant” did not specify a time of execution, the

cover letter stated: “I have designated the week beginning at 12:00 noon on

Tuesday, March 18, 2014, through 12:00 noon on Tuesday, March 25, 2014, for

the execution. I have been advised that you have set the date and time of execution

for Thursday, March 20, 2014, at 6:00 p.m.” This cover letter also was sent to

Chief Justice Ricky Polston of the Florida Supreme Court, Chief Judge Peter

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Weinstein of the Seventeenth Judicial Circuit, Secretary Michael Crews of the

Florida Department of Corrections, Julia McCall of the Office of Executive

Clemency, Assistant Deputy Attorney General Carolyn Snurkowski, Henry, and

Henry‟s counsel. Despite the clear time designation in the cover letter, Henry

contends that his execution cannot proceed because the time was not designated in

the document actually titled “Death Warrant.”

Henry‟s motion to dismiss his warrant was properly denied because section

922.052 does not grant death-sentenced inmates a right to challenge the

Governor‟s exercise of discretion in issuing death warrants. In Jarvis v. Chapman,

159 So. 282, 284 (Fla. 1934), this Court examined an inmate‟s petition for a writ of

habeas corpus alleging that executive branch officials failed to comply with a

statute requiring that “the copy of the record” of the inmate‟s conviction and

sentence be attached to the death warrant. This Court determined that the death-

sentenced inmate was not entitled to challenge whether the warrant complied with

the statute:

We hold that he has no rights in regard to it. It is merely a
ministerial function as to the carrying out of the sentence pronounced
upon the petitioner. His legal rights are ended so far as that judgment
is involved. He has no voice as to the day he is to be executed, nor
when the executive warrant shall issue, nor whether the certified copy
of the record supplied to the Governor contains matters or does not
contain matters that do not relate to the record proper which is
designed to show only that the court pronouncing the sentence had
jurisdiction of the person and crime, that there was a trial, verdict, and

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 judgment and sentence, and, in case of appellate proceeding, a copy of
the mandate from the appellate court.

Id. at 289. Similarly, in Tompkins v. State, 994 So. 2d 1072 (Fla. 2008), this Court

concluded that a death-sentenced inmate could not challenge the Governor‟s

issuance of a warrant or the timing of his execution. Following the signing of his

death warrant in 2008, Tompkins argued that because Governor Bush—who had

signed a death warrant for Tompkins in 2001—“was required [by section

922.06(2)] to reschedule his execution within ten days of the lifting of the stay of

execution,” “Governor Crist lacked the authority to reset the execution in October

2008.” Id. at 1084. This Court affirmed the summary denial of Tompkins‟ claim,

reasoning that it was procedurally barred and, alternatively, that “there is no

authority that supports a claim that section 922.06(2) either explicitly or implicitly

provides criminal defendants with any enforceable rights and, specifically, a „right‟

to a speedy execution.” Id. Henry, like Jarvis and Tompkins, does not offer any

authority to support his claim that his sentence should be delayed or commuted as

a result of any noncompliance with a statute governing the issuance of a death

warrant.

Moreover, when sections 922.052 and 922.06 are read as a whole, the

Legislature clearly expresses an intent that a time designation in the warrant is not

essential to carrying out the sentence. See State v. Fuchs, 769 So. 2d 1006, 1009

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(Fla. 2000) (“[S]tatutes which relate to the same or closely related subjects should

be read in pari materia.”).

Section 922.052(2)(b) states: “Within 30 days after receiving the letter of

certification from the clerk of the Florida Supreme Court, the Governor shall issue

a warrant for execution if the executive clemency process has concluded, directing

the warden to execute the sentence within 180 days, at a time designated in the

warrant.” (Emphasis added.) Similarly, section 922.052(3) provides: “The

sentence shall not be executed until the Governor issues a warrant, attaches it to the

copy of the record, and transmits it to the warden, directing the warden to execute

the sentence at a time designated in the warrant.” (Emphasis added.) Section

922.052(4), however, explains that “[i]f, for any reason, the sentence is not

executed during the week designated, the warrant shall remain in full force and

effect and the sentence shall be carried out as provided in s. 922.06.” (Emphasis

added.) Section 922.06(2), in turn, provides:

(a) If execution of the death sentence is stayed by the Governor,
and the Governor subsequently lifts or dissolves the stay, the
Governor shall immediately notify the Attorney General that the stay
has been lifted or dissolved. Within 10 days after such notification,
the Governor must set the new date for execution of the death
sentence.
(b) If execution of the death sentence is stayed incident to an
appeal, upon certification by the Attorney General that the stay has
been lifted or dissolved, within 10 days after such certification, the
Governor must set the new date for execution of the death sentence.
When the new date for execution of the death sentence is set by
the Governor under this subsection, the Attorney General shall notify

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 the inmate‟s counsel of record of the date and time of execution of the
death sentence.

When read in pari materia, these statutes provide that an inmate‟s execution

time and date can be changed without directing the Governor to revise the existing

warrant or to issue a new warrant. Thus, contrary to Henry‟s argument, the plain

language of chapter 922 does not evince an intent by the Legislature that an

execution should be barred on the basis that the time of execution is not designated

in the warrant.

C. As-Applied Challenge to Florida’s Lethal Injection Protocol

In his third issue on appeal, Henry argues that the postconviction court erred

in denying his claim that due to Henry‟s specific medical concerns, the use of

midazolam as the first drug of the lethal injection process creates an

unconstitutional risk of severe pain. “[M]ixed questions of law and fact that

ultimately determine constitutional rights should be reviewed by appellate courts

using a two-step approach, deferring to the trial court on questions of historical fact

but conducting a de novo review of the constitutional issue.” Connor v. State, 803

So. 2d 598, 605 (Fla. 2001). Again, the postconviction court did not err in denying

Henry‟s claim.

Article I, section 17 of the Florida Constitution provides that “[a]ny method

of execution shall be allowed, unless prohibited by the United States Constitution.”

Article I, section 17, further requires that its prohibition against excessive

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punishment “shall be construed in conformity with decisions of the United States

Supreme Court which interpret the prohibition against cruel and unusual

punishment provided in the Eighth Amendment to the United States Constitution.”

We are therefore bound by the precedent of the United States Supreme Court

regarding challenges to methods of execution.

The Supreme Court has held that to state a claim under the Eighth

Amendment, a defendant must show that the state‟s lethal injection protocol is “

„sure or very likely to cause serious illness and needless suffering.‟ ” Brewer v.

Landrigan, 131 S. Ct. 445, 445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50

(2008) (plurality opinion)). “In other words, there must be a substantial risk of

serious harm, an objectively intolerable risk of harm that prevents prison officials

from pleading that they were subjectively blameless for purposes of the Eighth

Amendment.” Howell, 39 Fla. L. Weekly at S92 (internal quotation marks

omitted). “This heavy burden is borne by the defendant—not the State.” Id.

At the March 10, 2014, evidentiary hearing, Henry called Dr. Joel Zivot, an

Assistant Professor of Anesthesiology in Surgery and the Medical Director of the

Cardiothoracic Intensive Care Unit at Emory University Hospital and a practicing

anesthesiologist. Based on Florida Department of Corrections‟ medical records

provided by Henry‟s counsel and an in-person examination of Henry, Dr. Zivot

opined that Henry has “coronary artery disease of a significant nature.” Dr. Zivot

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then explained that if a person injected with midazolam is—like Henry—taking a

diuretic to treat high blood pressure, that person‟s blood pressure will fall more

than would the blood pressure of a person with normal blood pressure and could

fall “quite dramatically.” Dr. Zivot also testified that in a person with coronary

artery disease, like Henry, “once the blood pressure falls and the coronary blood

flow is reduced . . . almost instantaneously there can be the beginning of damage to

a heart muscle [that] is experienced as pain or tightness or shortness of breath or

pressure.” Finally, Dr. Zivot testified that there is a substantial risk that the fall in

blood pressure in Henry‟s case would occur before a loss of complete

consciousness and that the coronary event would be experienced as pain.

In response, the State called Dr. Mark Dershwitz, a member of the

Department of Anesthesiology and the Department of Biochemical and Molecular

Pharmacology at the University of Massachusetts Medical School and a clinician at

UMass Memorial Health Care. Dr. Dershwitz opined, to a reasonable degree of

medical certainty, that an inmate injected with a massive dose of midazolam would

be unconscious before any “hypothetical drop in blood pressure” occurred.

Regarding whether an injection of midazolam would cause a drop in blood

pressure, Dr. Dershwitz testified that at the “usual[] doses for inducing general

anesthesia, thirty, thirty-five, or even fifty milligrams, the drop in blood pressure is

very mild if at all.” Dr. Dershwitz then explained that any drop in blood pressure

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from an injection of midazolam would not occur until after the recipient of the

drug had lost consciousness. First, Dr. Dershwitz testified that because a fifty

milligram dose would render a person “in the state of general anesthesia” such that

“they could not perceive or process any sort of noxious stimuli,” the initial 250-

milligram dose required by Florida‟s lethal injection protocol would certainly

result in unconsciousness. Second, Dr. Dershwitz explained that this

unconsciousness would occur quickly. He testified that when midazolam is given

intravenously, “[c]onsciousness will be lost after around twenty-five or thirty or

thirty-five milligrams will actually have been delivered,” which “would actually go

in within the first couple of seconds,” and that the “onset of the effect of

[m]idazolam is usually quoted as around one to two minutes.” Third, Dr.

Dershwitz explained that any impact on a recipient‟s blood pressure from a large

dose of midazolam does not happen as quickly as unconsciousness because “the

action of [m]idazolam to drop the blood pressure is going to happen at the level of

the vasculature, not anywhere closer to the heart or the brain.” Dr. Dershwitz

explained the course of midazolam through the body:

Because, first of all, after the blood is pumped from the heart to
the circulation, the brain receives literally the first amount of the
blood pumped from the heart because of its proximity.
And so once the brain will have received approximately twenty-
five milligrams[,] the inmate will be unconscious.
Now, for the blood pressure to fall, not only does the
[m]idazolam need to be pumped far more distantly, especially to the
lower extremities, but once it reaches there[,] it then has to start a

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 cascade of events to result in the relaxation of smooth muscle to cause
the dilation of the blood vessels that would then result in a drop of
blood pressure. And that does not happen instantly.
And so there is no plausible way that I could imagine that even
if the [m]idazolam caused a drop in blood pressure[,] it would occur
prior to the inmate losing consciousness.

The State also called Dr. Roswell Lee Evans, a doctor of pharmacy, who is a

professor and dean at the Harrison School of Pharmacy at Auburn University. Dr.

Evans testified that while he does not know what effect a 250- or 500-milligram

dose of midazolam will have on a recipient‟s blood pressure, the relevant

pharmaceutical literature indicates that midazolam—at a therapeutic dose—at most

could cause a “reduction in blood pressure of about twenty percent,” which

“should not be of any particular danger”—regardless of the person‟s coronary

health. Furthermore, Dr. Evans testified that the first part of the body to be

affected by midazolam is the brain. He explained that “[w]ithin one to two

minutes you are going to get a very significant effect on the central nervous

system” and that the recipient of 250 milligrams of midazolam would “almost

immediately” lose consciousness and not be able to feel pain. Dr. Evans concluded

that after the initial injection of 250 milligrams of midazolam, Henry will not be

conscious to experience the pain of any acute coronary event that may occur as a

result of any reduction of blood pressure caused by the midazolam.

After considering this testimony and argument from the parties, the

postconviction court denied Henry‟s as-applied challenge. The postconviction

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court determined that Henry “did not meet the burden of showing that given his

hypertension diagnosis, elevated cholesterol, and coronary artery disease, the use

of midazolam in his case is „sure or very likely to cause serious illness and

needless suffering.‟ ” State v. Henry, No. 87-018628CF10A at 13 (Fla. 17th. Jud.

Cir. Ct. order dated Mar. 11, 2014) (quoting Brewer, 131 S. Ct. at 445). The

postconviction court concluded that Henry did not demonstrate a substantial risk of

serious harm from the use of midazolam in Florida‟s lethal injection protocol

because the evidence established that even if Henry were to suffer an acute

coronary event as a result of an injection of midazolam, he would be unconscious

and unable to process the pain associated with a heart attack. Id. at 12.

The postconviction court‟s conclusion is supported by competent,

substantial evidence. At the evidentiary hearing, Dr. Dershwitz testified that any

drop in blood pressure from an injection of midazolam would not occur until after

the recipient of the drug had lost consciousness. Dr. Dershwitz explained that

because the midazolam affects blood pressure by relaxing the smooth muscle tissue

of the peripheral blood vessels, an intravenous injection of midazolam will affect

the brain, leading to unconsciousness, more quickly than it will affect blood

pressure. Dr. Dershwitz also testified that once rendered unconscious by

midazolam, a person “could not perceive or process any sort of noxious stimuli.”

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 Because Henry has not shown a “substantial risk of serious harm,” Howell,

39 Fla. L. Weekly at S92, he has not demonstrated that Florida‟s lethal injection

protocol—as applied to him—violates the Eighth Amendment of the United States

Constitution. Accordingly, the postconviction court did not err in denying his

second successive postconviction motion.

III. CONCLUSION

For the reasons stated above, we affirm the postconviction court‟s denial of

Henry‟s second successive motion for postconviction relief, his motion to declare

section 922.052 unconstitutional, and his motion to dismiss the death warrant.

Additionally, we deny Henry‟s motion for a stay of execution. No motion for

rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.

An Appeal from the Circuit Court in and for Broward County,
Andrew L. Siegel, Judge - Case No. 87-018628ACF10A

Melodee A. Smith, Offices of Melodee A. Smith, Fort Lauderdale, Florida; and
Kevin James Kulik of Kevin J. Kulik, PA, Fort Lauderdale, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Consiglia Terenzio,
West Palm Beach, Florida,

for Appellee

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