[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 11, 2006
No. 05-15110 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00621-CV-OC-10GRJ
RICHARD HENYARD,
Petitioner-Appellant,
versus
JAMES MCDONOUGH,
Secretary, Florida Department
of Corrections,
CHARLIE CRIST,
Florida Attorney General,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 11, 2006)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
In this capital case, Richard Henyard appeals the district court’s denial of his
28 U.S.C. § 2254 petition for a writ of habeas corpus. We review this petition on
the three grounds specified in our Certificate of Appealability: (1) whether the state
trial court’s denial of petitioner’s motion to suppress certain statements violated his
right against self-incrimination; (2) whether the trial court’s denial of petitioner’s
request for a change of venue denied him a fair trial by an impartial jury; and (3)
whether trial counsel’s failure to present certain mitigating evidence during the
penalty phase constituted ineffective assistance of counsel. After review and oral
argument, we affirm.
I. BACKGROUND
In June 1994, a jury in the Circuit Court of Lake County, Florida, convicted
Henyard of multiple crimes, including the carjacking of Dorothy Lewis and her
two children, Jasmine, age 3, and Jamilya, age 7; the first degree murder of
Jasmine and Jamilya Lewis; and the rape and attempted murder of Dorothy Lewis.
The jury unanimously recommended, and the trial court imposed, a sentence of
death.
The Florida Supreme Court denied Henyard’s direct appeal and affirmed
Henyard’s conviction and death sentence in 1996. Henyard v. State, 689 So.2d
2
239 (Fla. 1996). In so doing, the Florida Supreme Court summarized the trial
evidence of Henyard’s crimes as follows:
The record reflects that one evening in January, 1993,
eighteen-year-old Richard Henyard stayed at the home of a family
friend, Luther Reed. While Reed was making dinner, Henyard went
into his bedroom and took a gun that belonged to Reed. Later that
month, on Friday, January 29, Dikeysha Johnson, a long-time
acquaintance of Henyard, saw him in Eustis, Florida. While they were
talking, Henyard lifted his shirt and displayed the butt of a gun in the
front of his pants. Shenise Hayes also saw Henyard that same evening.
Henyard told her he was going to a night club in Orlando and to see
his father in South Florida. He showed Shenise a small black gun and
said that, in order to make his trip, he would steal a car, kill the owner,
and put the victim in the trunk.
William Pew also saw Henyard with a gun during the last week
in January and Henyard tried to persuade Pew to participate in a
robbery with him. Later that day, Pew saw Henyard with Alfonza
Smalls, a fourteen-year-old friend of Henyard’s. Henyard again
displayed the gun, telling Pew that he needed a car and that he
intended to commit a robbery at either the hospital or the Winn Dixie.
Around 10 p.m. on January 30, Lynette Tschida went to the
Winn Dixie store in Eustis. She saw Henyard and a younger man
sitting on a bench near the entrance of the store. When she left,
Henyard and his companion got up from the bench; one of them
walked ahead of her and the other behind her. As she approached her
car, the one ahead of her went to the end of the bumper, turned
around, and stood. Ms. Tschida quickly got into the car and locked the
doors. As she drove away, she saw Henyard and the younger man
walking back towards the store.
At the same time, the eventual survivor and victims in this case,
Ms. Lewis and her daughters, Jasmine, age 3, and Jamilya, age 7,
drove to the Winn Dixie store. Ms. Lewis noticed a few people sitting
on a bench near the doors as she and her daughters entered the store.
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When Ms. Lewis left the store, she went to her car and put her
daughters in the front passenger seat. As she walked behind the car to
the driver’s side, Ms. Lewis noticed Alfonza Smalls coming towards
her. As Smalls approached, he pulled up his shirt and revealed a gun
in his waistband. Smalls ordered Ms. Lewis and her daughters into the
back seat of the car, and then called to Henyard. Henyard drove the
Lewis car out of town as Smalls gave him directions.
The Lewis girls were crying and upset, and Smalls repeatedly
demanded that Ms. Lewis “shut the girls up.” As they continued to
drive out of town, Ms. Lewis beseeched Jesus for help, to which
Henyard replied, “this ain’t Jesus, this is Satan.” Later, Henyard
stopped the car at a deserted location and ordered Ms. Lewis out of
the car. Henyard raped Ms. Lewis on the trunk of the car while her
daughters remained in the back seat. Ms. Lewis attempted to reach for
the gun that was lying nearby on the trunk. Smalls grabbed the gun
from her and shouted, “you’re not going to get the gun, bitch.” Smalls
also raped Ms. Lewis on the trunk of the car. Henyard then ordered
her to sit on the ground near the edge of the road. When she hesitated,
Henyard pushed her to the ground and shot her in the leg. Henyard
shot her at close range three more times, wounding her in the neck,
mouth, and the middle of the forehead between her eyes. Henyard and
Smalls rolled Ms. Lewis’s unconscious body off to the side of the
road, and got back into the car. The last thing Ms. Lewis remembers
before losing consciousness is a gun aimed at her face. Miraculously,
Ms. Lewis survived and, upon regaining consciousness a few hours
later, made her way to a nearby house for help. The occupants called
the police and Ms. Lewis, who was covered in blood, collapsed on the
front porch and waited for the officers to arrive.
As Henyard and Smalls drove the Lewis girls away from the
scene where their mother had been shot and abandoned, Jasmine and
Jamilya continued to cry and plead: “I want my Mommy,” “Mommy,”
“Mommy.” Shortly thereafter, Henyard stopped the car on the side of
the road, got out, and lifted Jasmine out of the back seat while Jamilya
got out on her own. The Lewis girls were then taken into a grassy area
along the roadside where they were each killed by a single bullet fired
into the head. Henyard and Smalls threw the bodies of Jasmine and
4
Jamilya Lewis over a nearby fence into some underbrush.
. . . .
The autopsies of Jasmine and Jamilya Lewis showed that they
both died of gunshot wounds to the head and were shot at very close
range. Powder stippling around Jasmine’s left eye, the sight of her
mortal wound, indicated that her eye was open when she was shot.
One of the blood spots discovered on Henyard’s socks matched the
blood of Jasmine Lewis. “High speed” or “high velocity” blood
splatters found on Henyard’s jacket matched the blood of Jamilya
Lewis and showed that Henyard was less than four feet from her when
she was killed. Smalls’ trousers had “splashed” or “dropped blood” on
them consistent with dragging a body. DNA evidence was also
presented at trial indicating that Henyard raped Ms. Lewis.
Henyard v. State, 689 So.2d at 242-45.
A. Henyard’s Confession
At 9 a.m. on January 31, 1993, the petitioner Henyard went with his “auntie”
Linda Miller and her friend Annie Neal to a laundromat. The laundromat was
located next door to the Winn Dixie supermarket where Henyard and Smalls,
roughly eleven hours earlier, had abducted the victims. Before washing their
clothes, Neal and Miller went into that Winn Dixie to buy laundry supplies.
In the Winn Dixie, police officer Adam Donaldson was asking patrons if
they knew anything about the double murder and rape from the night before.
Officer Donaldson recognized Neal because she previously had provided
information to the police, at times for money. Officer Donaldson summoned Neal
5
to him, told Neal about the murders and mentioned that there was a reward for any
information about the crime. Officer Donaldson asked Neal “to keep her ears
open.”
After returning to the laundromat, Neal and Miller spoke about the double
murder investigation in the presence of Henyard. Neal mentioned some of what
she had learned from Officer Donaldson, including that the mother had survived
the shooting. Henyard then volunteered that he knew something about the crime.
Neal responded by telling Henyard, “let’s go out and investigate because they got a
thousand-dollar reward.” Henyard agreed.
Neal and Henyard drove from the laundromat to Neal’s house. After they
dropped Neal’s clothes off, Henyard asked Neal to drive him to Alfonza Smalls’s
house “because they found the car and they [are] dusting for fingerprints.” Neal
drove Henyard to Smalls’s house, where the two had a conversation that Neal did
not overhear.
On the drive away from Smalls’s house, Neal and Henyard passed near the
crime scene and saw police officers investigating the murders. Unprompted by
Neal, Henyard asked Neal to drive him to the police station. At the police station,
Henyard got out of the car of his own accord. In the parking lot, Neal spotted
Officer Wayne Perry, an officer she recognized. Neal then “hollered Wayne
6
down,” telling him that “Rick [Henyard] got something to tell you.”
Henyard approached Officer Perry, telling him without prompting that he
had witnessed the Lewis murders but that he “didn’t do it.” Officer Perry escorted
Henyard inside the police station for further questioning. Henyard was not placed
under arrest or handcuffed, and he followed Officer Perry into the station on his
own volition.1
Henyard was questioned for three and a half hours by a number of law
enforcement officers, including Donald Dowd and other FBI agents, Robert
O’Connor of the Florida Department of Law Enforcement, and Robert Hart and
Scott Barker of the Eustis Police Department. Initially, the officers considered
Henyard a witness and not a suspect because he had arrived at the police station
voluntarily and had claimed not to have committed the crimes. Consequently, the
officers did not read Henyard his rights at this time. However, the officers’
suspicions quickly grew that Henyard was responsible for the murders.
Henyard’s meeting with the officers at the police station began at about 1:00
p.m. on January 31, 1993. Henyard initially told the officers that at 1:00 a.m. that
1
In his brief, Henyard asserts that Neal, a police informant, “tricked” him into visiting the
police station. We reject this allegation. At the suppression hearing, Neal testified that Henyard
himself proposed the visit to the police and directed her to take him to the police station.
Moreover, during the interrogation, Henyard himself acknowledged that he had approached the
police voluntarily.
7
morning, Emmanuel Yon and Alfonza Smalls had picked Henyard up in a blue
Chrysler and the three had driven to a night club. Henyard stated that at the club,
Yon and Smalls confessed to him that they “had went down to Winn Dixie and
stole a car and shot the lady and her two children.” Henyard claimed that because
he had no other way to get home from the club, he had remained at the club for a
while with Yon and Smalls, and then drove them home in the car at around 4:30 or
5:00 a.m.
As soon as Henyard told the police that he had driven Ms. Lewis’s car, one
of the FBI agents suggested that Henyard could be charged as an accessory after
the fact. The agent told Henyard, “you’ve got to stand up and do the right thing.”
Henyard agreed with the officer and commented that he felt the need to talk to the
police “because I know my fingerprints in that car and I’m on probation.” The
agent responded that “the best thing you can do right now is – is to come clean
with the whole thing.”
At the officers’ prompting, Henyard retold in greater detail his fabricated
story about Yon and Smalls. Apparently suspecting that Henyard was not being
truthful, one of the agents interrupted him, and this exchange occurred:
FBI Agent: All right. Look, let me tell you something right now.
Are you involved in a murder?
Henyard: No, I am not.
Agent: Huh? Are you sure you’re not involved in a murder?
8
Huh?
Henyard: Yes, Sir.
Agent: Absolutely certain you’re not involved in a murder?
Henyard: Yes, Sir.
Agent: The first one that talks gets the best deal in every case,
you know that, okay?
Because Henyard steadfastly denied involvement in the murder, the agent asked if
Henyard would be willing to take a polygraph test. Henyard said that he “would
not take one without the presence of my auntie.”
At the officers’ prompting, Henyard continued to add details to his
fabricated story, mostly concerning who Yon and Smalls were, how Henyard knew
them, and where they lived and “hung out.” At about 1:30 p.m., the officers
decided that Henyard would need to remain in police custody, as indicated by this
colloquy:
FBI Agent: Is there any place we can put him that we can put
somebody with him?
Off. Hart: Uh-huh.
Agent: Why don’t we do that.
Henyard: What’s that?
Agent: You’re going to have to stay here for awhile, okay?
Henyard: How long is a while?
Agent: Just for a little while, because we’re going to talk to you
some more, okay, but we’ve got to talk among ourselves
first and then we’ve got to talk to you, okay?
Henyard then inquired twice more about the possibility of leaving:
Henyard: Can I go home soon, man?
Off. Hart: Soon. You know how these federal people are, though.
9
They’re not like us local boys.
. . .
Henyard: Excuse me, sir. How long am I gonna have to stay here?
Agent: Huh?
Henyard: How long do I have to stay here?
Agent: Ah, just a few more minutes.
Immediately after these exchanges, the law enforcement officers confirmed
that Henyard could read and write, had reached the eleventh grade in school, and
was eighteen years old. The officers then read Henyard his Miranda rights. At
about 1:30 p.m., Henyard affirmed that he understood his rights and that he wished
to waive his rights, and he signed the rights waiver form.
Shortly after Henyard’s Mirandized interrogation began, the law
enforcement officials again asked Henyard if he would be willing to take a
polygraph test. Henyard said that he would not do so “[w]ithout the presence of
my auntie.” The officers offered to bring Henyard’s auntie into the station, but
told Henyard that “[s]he can’t stay in here while you’re taking a polygraph.”
Henyard responded, “[t]hen I won’t take it. I want my auntie sitting right beside
me when I take it.”
The officers promised to try to find Henyard’s auntie and bring her to the
station. This exchange then transpired:
Agent: After you talk to [your auntie] – Don’t you want to
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resolve this right now?
Henyard: Yes, I do.
Agent: Okay. You just hang out here. What else you
going to do? You going to hang out at the Manors,
you can hang out here, okay?
Henyard: Huh?
Agent: You just stay here a minute – you know, we can’t
force you to stay here (inaudible).
Henyard: Take me to my auntie’s house.
Agent: We’re going to have your aunt come down here.
Henyard: Y’all (Inaudible).
Agent: Yeah, we’re going to have –
Henyard: Superbowl, man. I’m missing my game.2
Agent: Well, it’s 6:00. You’ve got a couple of [sic] three
hours yet.
The officers continued the interrogation after this exchange. At around 2:30 p.m.,
Robert O’Connor of the Florida Department of Law Enforcement arrived and
continued the interrogation. Before asking Henyard any questions, O’Connor
reminded Henyard of his Miranda rights and asked him again whether he wanted to
talk:
O’Connor: Okay. A little while ago, some FBI agents read
you your rights. Do you remember those rights?
Henyard: Uh-huh.
O’Connor: Do you remember signing this piece of paper that
says Waiver of Rights, right where it says there?
Henyard: Yes, sir.
O’Connor: Okay. How old are you, Richard?
Henyard: Eighteen.
O’Connor: Eighteen? How far did you go in school?
Henyard: Eleventh grade.
2
The interrogation occurred on the day of the Super Bowl.
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O’Connor: Can you read and write the English language?
Henyard: Yes, sir.
O’Connor: You understand what we’re talking about here
today?
Henyard: Yes, sir.
O’Connor: You’ve been talking to some other people here
earlier today and they’ve been talking to you about
a very serious situation. Do you understand what
they’re talking about?
Henyard: Yes, sir.
O’Connor: Okay. There’s no question in your mind what
we’re talking about here today?
Henyard: No.
O’Connor: About a killing?
Henyard: Huh-uh.
O’Connor: Okay. As long as we all know where we’re
coming from before we get started here today,
okay?
Henyard: (Inaudible).
O’Connor: All right. I want you to go ahead and tell me –
You did say you understood all these, right?
Henyard: Uh-huh.
O’Connor: All these rights? I’m not going to read them again
to you because you’ve already been read them,
okay?
Henyard: Uh-huh.
O’Connor: They’ve been read to you, you understand them.
They were read to you at 1:33 p.m., and it’s now
2:35. They were – just about an hour ago they
were read to you, okay?
Henyard: Uh-huh.
O’Connor: Do you still have – do you still want to talk to us?
Henyard: Yes, sir.
O’Connor: Okay, great . . . .
Following this exchange, O’Connor continued interrogating Henyard.
At some point in the ongoing interrogation, Officer Hart noticed blood on
12
Henyard’s shoes and socks. Officer Hart confronted Henyard about the blood, and
Henyard immediately recounted a different story of what had transpired the
previous night, saying, “I’m being straight up this time.”
Henyard began by telling the officers that he and Smalls had gone to Winn
Dixie and had carjacked Dorothy Lewis at gunpoint. Henyard admitted that he and
Smalls then had driven down a dirt road and parked Lewis’s car at the side of the
road. Henyard asserted that Smalls told Dorothy Lewis to exit the car and sit on
the trunk, where Smalls raped her while her children and Henyard sat in the back
seat. Henyard admitted that he then joined Smalls behind the vehicle, intending to
rape Lewis as well. Henyard stated that when he started to have sex with Lewis,
she grabbed at the gun, which was sitting on the trunk of the car.
Henyard claimed that while struggling with Dorothy Lewis for the gun, he
inadvertently shot her in the leg. Henyard eventually admitted, however, that he
shot Dorothy Lewis at least two more times in the face and left her at the side of
the road. Henyard explained that he and Smalls got back in the car and drove
further down the road with the Lewis children still in the back seat, crying for their
mother.
Henyard insisted that Smalls then took the children out of the back seat and
shot them each in the head, while Henyard remained in the car. However, Henyard
13
eventually acknowledged that he helped Smalls carry the bodies of the two Lewis
children a short ways from the road, where he and Smalls discarded the bodies
behind a barbed wire fence.
Prior to trial, Henyard moved to preclude from trial all statements he made
to law enforcement officers on January 31, 1993. Henyard contended that he had
not knowingly and voluntarily waived his Miranda rights, and that to whatever
extent he had consented to the interrogation, he subsequently revoked his consent
and questioning should have ceased.
On May 11, 1994, the state trial court held a lengthy hearing concerning
Henyard’s motion to suppress. The trial court heard from numerous witnesses,
including Donaldson, Neal, Perry, and at least four of the officers involved in
questioning Henyard. In considering the motion to suppress, the trial judge also
read the transcript of Henyard’s interrogation multiple times and watched the
videotaped portion of Henyard’s statements.
The state trial court precluded all of Henyard’s statements made between
pages 4 and 32 of the transcript – from when the officers suggested Henyard might
be guilty of accessory after the fact to when Henyard waived his rights and
consented to talk. During this pre-Miranda portion of the interview, Henyard
denied participating in the carjacking, rape, attempted murder and murders. The
14
suppression issue on appeal thus involves only Henyard’s contention that the trial
court also should have precluded Henyard’s confessions after he received the
Miranda warnings and waived his Miranda rights. The state trial court concluded
that these statements were admissible because Henyard made them after knowingly
and voluntarily waiving his Miranda rights.
In support of its conclusion that Henyard understood his rights, the state trial
court cited in particular that: (1) Henyard understands the English language well;
(2) Henyard was advised of his rights multiple times, and in each case waived
them, at least once in writing; (3) Henyard has an eleventh grade education; (4)
Henyard’s I.Q. of eighty-five is not substantially below average; and (5) Henyard
had been advised of his rights on previous occasions. The state trial court also
found that Henyard’s statements were given voluntarily, citing in particular that:
(1) the record showed no evidence that Henyard confessed under duress, threats, or
false promises; (2) after consenting to be questioned, Henyard never revoked that
consent; and (3) the record demonstrated Henyard’s capacity for abstract
reasoning, as shown by the fact that Henyard was aware that his actions carried
serious consequences and that he initially lied as to what had transpired.
B. Jury Selection
On February 3, 1994, Henyard moved for a change of venue, arguing that
15
extensive pretrial publicity had prejudiced the jury pool and made it impossible for
Henyard to receive a fair trial in Lake County, Florida. See Fla. R. Crim. P. 3.240
(allowing for change of venue “on the ground that a fair and impartial trial cannot
be had in the county where the case is pending”). Henyard attached to his motion
an appendix including dozens of newspaper articles from the Orlando Sentinel and
the Leesburg Daily Commercial.3 The state trial court heard argument on the
motion at a pretrial hearing on February 23, 1994, and denied the motion.
The jury selection process was extensive. Prior to trial, the parties conferred
and agreed upon a questionnaire to be sent to prospective jurors. The
questionnaire focused on two issues in particular: the prospective jurors’ prior
knowledge of the case and the prospective jurors’ views on the death penalty. The
state trial court dismissed some prospective jurors based on the questionnaires,
either because of their positions on the death penalty or their prior knowledge of
the case, or because they provided valid excuses.
Those prospective jurors who were not dismissed based on the questionnaire
or who did not answer the questionnaire were summoned. During the lengthy voir
dire, each prospective juror was asked individually about his knowledge of the case
3
The Daily Commercial is a local newspaper serving Lake and Sumter Counties. The
Orlando Sentinel is the larger Orlando newspaper, serving seven counties, including Lake
County.
16
and his ability to judge the case impartially.4 The eventual jurors had at most a
basic knowledge of the crime and virtually no knowledge of the investigation, the
arrest of Henyard, or the evidence against him. Each of the eventual jurors
testified to having no prior opinion on Henyard’s guilt, and all stated that they
could be fair and impartial.
After voir dire was finished, Henyard renewed his motion for change of
venue based on pretrial publicity. Henyard noted that he had submitted to the court
yet additional examples of media coverage of the case in the run-up to trial. The
trial court denied the renewed motion.
C. Guilt Phase
At trial, the government presented overwhelming evidence of Henyard’s
guilt, including the video of Henyard’s confession to carjacking the Lewises,
raping and shooting Dorothy Lewis, and discarding the bodies of Jasmine and
Jamilya Lewis. Among the many witnesses was Dorothy Lewis herself, who
testified that Henyard carjacked her and her children, raped her on the trunk of her
car while her children sat in the back seat, and shot her in the leg and face.
Forensic evidence established that Henyard shot Dorothy Lewis with the gun he
stole from Luther Reed and that the same gun was used in the murders of Jasmine
4
The transcript of the voir dire extends over 1,000 pages.
17
and Jamilya Lewis. The government also introduced expert blood spatter
testimony. That testimony established that the blood on Henyard’s clothing
indicated he was within four feet of Jasmine and Jamilya Lewis at the time they
were executed, whereas the blood on Smalls’s clothing was consistent not with the
spatter from a gunshot wound, but rather with blood stains from moving a bloody
body. After deliberation, the jury found Henyard guilty of all charges, including
the capital murder of Jasmine and Jamilya Lewis.
D. Penalty Phase
Because Henyard asserts that his counsel was ineffective during the penalty
phase of his trial, we review that phase in detail.
1. Aggravating Evidence
The government put on three witnesses during the penalty phase of the trial
to augment the guilt-phase evidence of aggravating circumstances justifying a
sentence of death. First, Dorothy Lewis augmented her testimony by reciting a
specific incident during the crime. Lewis testified that while she was in the back
seat of the car with her two daughters, she began to pray audibly to Jesus. When
Henyard heard her praying to Jesus, Henyard turned to her and said, “You might as
well stop calling Jesus, this isn’t Jesus, this is Satan.” This testimony supported
the government’s contention that Henyard terrorized his victims and that the crime
18
was especially heinous, atrocious and cruel.
Carol Custar, a court clerk for the Juvenile Division of the courthouse,
testified to verify the court’s record of Henyard’s juvenile conviction, and thus the
presence of the aggravating factor of a past conviction for a violent felony. The
government then introduced into evidence the authenticated record of Henyard’s
1989 charge and guilty plea to robbery with a weapon. At the time of that crime,
Henyard was 14 years old.
Finally, the government called Leroy Parker, the same expert in blood
spatter analysis who had testified at trial. Parker was called to refute any claim by
Henyard that his role in the murders of Jamilya and Jasmine Lewis was minor.
Parker testified that he examined Henyard’s and Smalls’ clothing and found high
velocity blood spatter on only Henyard’s clothing. This blood evidence suggested
that Henyard was within four feet of Jasmine and Jamilya Lewis at the time they
were shot in the head.
2. Mitigating Evidence
Henyard called eight witnesses on his behalf during the penalty phase.
Jeff Pfister, an attorney, testified by deposition that he represented Henyard
in Henyard’s 1989 juvenile case for robbery with a weapon. According to Pfister,
Henyard and two friends had robbed a convenience store of roughly $70. Henyard
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acted only as a lookout, but because one of Henyard’s accomplices wielded a stick,
Henyard was charged with robbery with a weapon. Pfister acknowledged that the
adult equivalent charge for Henyard’s conduct would have been armed robbery.
Henyard next called Michael Graves, an attorney and criminal justice expert.
Graves testified about the Florida Sentencing Guidelines. Graves testified that if
Henyard were sentenced to consecutive life sentences rather than death, Henyard
would effectively have no hope of ever being released or paroled.
Nyoka Wiley, Henyard’s Godsister, testified on his behalf. Wiley explained
that she had grown up in the same house with Henyard in Eustis, Florida, until
Henyard was eleven, and that both were raised by Wiley’s mother and Henyard’s
Godmother, Jacqueline Turner. Wiley explained that Turner took good care of
Henyard, took him to church, and taught him right from wrong. Wiley told the
jury that Henyard always gave Turner “the utmost respect, . . . just like she was his
mother.” Wiley stated that she and Henyard were very close, and that she loved
him despite what he had done.
Wiley noted that Henyard “never really spent time” with his biological
mother, Hattie Gamble. Wiley also testified that most of Henyard’s friends when
he was growing up were younger than he, and that he had resisted going to ninth
grade because he wanted to remain with his younger friends.
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Edna McClendon, a former teacher of Henyard, was called. McClendon
testified that during Henyard’s ninth grade year, his school was unable to register
him because no parent would come to register him. McClendon never saw
Henyard’s mother, and Henyard told her that his mother was dead. McClendon
remarked that Henyard never had disciplinary problems in school.
The fifth mitigating witness was Henyard’s biological father, Richard
Henyard, Senior (“Senior”). Senior testified that he had held a steady job as a
truck driver for twenty-eight consecutive years, since before Henyard was born.
Senior met Hattie Gamble, Henyard’s biological mother, in 1973, and lived with
her only briefly in Eustis, Florida. Senior subsequently moved from Eustis to
Pahokee, Florida, and his job as a truck driver required that he travel frequently.
However, Senior stated that he would visit Henyard “[a]s often as I could, every
chance I got.” Senior acknowledged having “lost contact” with Henyard when
Henyard was seven or eight. Senior also acknowledged that before that time,
Henyard spent the night at Senior’s house on only one occasion, for two or three
weeks.
Senior did not see Henyard again until he was eleven, when Senior tracked
Henyard to Jacqueline Turner’s home in Eustis. Senior stated that when he found
Henyard, Henyard looked “[d]irty, nasty” and was not dressed appropriately.
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Senior decided to take Henyard from Turner, and brought Henyard into his home
in Pahokee, Florida, with Edith Ewing, Senior’s common law wife. Aside from a
brief period when Henyard returned to live with Turner, Henyard lived with Senior
and Ewing until he was seventeen. However, Senior’s heavy workload made it
difficult for him to have a one-on-one relationship with his son. For instance,
Senior was never involved in Henyard’s education in any way, never met
Henyard’s friends or teachers, and never took him to ball games or other social
activities. Senior had no history of drug use or alcohol abuse.
Jacqueline Turner, Henyard’s Godmother, was Henyard’s sixth witness.
Turner testified that she had been friends with Henyard’s biological mother, Hattie
Gamble, since both were fourteen. Turner related that Gamble had drug and
alcohol problems before she became pregnant with Henyard, but that Gamble did
not use substances during the pregnancy.5 Turner also stated that Gamble had a
difficult time giving birth to Henyard. After Henyard’s birth, Gamble began
drinking heavily again, to the point that she was drunk every day. When Turner
found Gamble naked, drunk, and having sex with multiple men, she decided to take
Henyard from Gamble. Henyard was ten months old at the time. Turner cared for
5
As Dr. Toomer later testified, there is no evidence that Henyard suffered from fetal
alcohol syndrome. However, Gamble herself acknowledged abusing substances during her
pregnancy.
22
him exclusively until he was three. Between the ages of three and eleven, Henyard
continued to stay with Turner but returned periodically to stay with his mother.
Turner testified that other children would ridicule Henyard, teasing that his
mother was a lesbian. Even so, Henyard often wanted to be with his mother, in
part because Turner disciplined him while his mother did not. When Henyard
stayed with Turner, Turner imposed rules on him, took him to church, and treated
him like one of her own. Turner acknowledged that by the time Henyard turned
eleven, he was becoming too much for her to control, he stayed out late at night,
and he frequently skipped school.
Henyard’s seventh mitigation witness was Dr. Jethro Toomer, an expert in
psychology and forensic psychology. Dr. Toomer met with Henyard in prison on
two occasions, in February 1993 and October 1993. Dr. Toomer administered
several machine-scored psychological tests and other, subjective psychological
tests to assess Henyard’s intelligence and personality. Dr. Toomer also
interviewed Jacqueline Turner and Hattie Gamble by phone, and reviewed the
transcripts of Henyard’s confessions to police and other records from the case.6
Based on the series of tests he administered, Dr. Toomer testified that
Henyard had an I.Q. of 85, placing him in the twenty-fifth percentile, a level which
6
Dr. Toomer never spoke with Henyard’s father because Dr. Toomer “was not aware that
he was involved in his son’s life.”
23
Dr. Toomer described as “low average.”7 Dr. Toomer assessed that Henyard had
certain deficiencies in visual motor coordination and perception and showed
patterns of insecurity and impulsivity. According to the test results, Henyard also
placed in approximately the ninetieth percentile on scales measuring his likelihood
for susceptibility to substance abuse and thought disturbance. Henyard showed
extremely low self esteem, and the tests indicated to Dr. Toomer that Henyard had
impaired emotional responses and a chronic inability to handle stress and
responsibility. Dr. Toomer also noted that Henyard had faced learning disabilities
and irregular attendance at school, and eventually had dropped out in the ninth or
tenth grade. Dr. Toomer testified that Henyard had “blunted affect,” meaning a
low level of emotionality with a mood that “tends to be very flat and very sober.”
Dr. Toomer also acknowledged, however, that Henyard did not show
psychosis and that “there was nothing to indicate any severe psychopathology in
terms of [Henyard’s] functioning.” Dr. Toomer stated that he found no evidence
that Henyard had suffered from fetal alcohol syndrome. Dr. Toomer also verified
on cross-examination that while he believed Henyard had an impaired capacity for
7
On cross-examination, Dr. Toomer acknowledged that Henyard had taken a scholastic
achievement test in school and obtained a “skill achieved” rating in all but three of a number of
areas of reading and writing proficiency. Dr. Toomer admitted that these test results were
“incompatible” with his assessment of Henyard’s I.Q., but asserted that the school test was “not
really that sophisticated” and asserted that these school results should be discounted.
24
appreciating the criminality of his conduct, that impairment was not substantial and
did not rise to the level of being a statutory mitigating factor.
Based on the test results and his observations, Dr. Toomer gave his opinion
that Henyard was functioning at the intellectual, emotional and mental level of a
thirteen-year-old. Dr. Toomer attributed many of Henyard’s deficiencies to the
fact that, in Dr. Toomer’s estimation, Henyard was raised “with an absence of
nurturing.” Dr. Toomer particularly emphasized that Henyard had moved from a
stable to a non-stable environment on multiple occasions, and that his father had
been mostly absent until he turned eleven. Dr. Toomer concluded that Henyard
was unable to foresee consequences with the same capacity as a normal eighteen-
or nineteen-year-old, and that he was under “some emotional disturbance” at the
time of the murders. However, Dr. Toomer acknowledged on cross-examination
that at the time of the crimes Henyard concretely knew that it is wrong to kill
someone.
Finally, Henyard called his biological mother, Hattie Mae Gamble, to testify.
Gamble testified that she drank constantly at the time she was pregnant with
Henyard and continued to drink heavily after he was born. Gamble also began
abusing cocaine and marijuana by the time Henyard was eight. Gamble recounted
that due to her substance abuse, she often lost track of Henyard even when he was
25
an infant, when he would sometimes leave the house without her noticing. Gamble
acknowledged that she had been arrested ten or eleven times for shoplifting.
Gamble also testified that before Henyard moved to live with his father, Senior
came around only once or twice a year, and she had no contact with him. Finally,
Gamble emphasized that Henyard lived for the majority of his early childhood with
Turner and that Turner took good care of him.
3. Government’s Rebuttal
The government called three witnesses to rebut Henyard’s mitigating
evidence. First, the government recalled Dr. Toomer. The government highlighted
a number of Henyard’s answers on the tests Dr. Toomer had administered. Dr.
Toomer acknowledged that in his test responses, Henyard had stated that both his
father and mother were good people and that he loved them both; that he had not
gotten “a raw deal in life;” and that his life was “as pleasant as that of most people
I know.” Dr. Toomer acknowledged a series of other answers by Henyard that
indicated his feelings that his family was neither unloving nor unsupportive.8 Dr.
Toomer also acknowledged that the tests he administered were machine scored and
8
In particular, Henyard answered (1) “false” to the statement, “There is very little love
and companionship in my family as compared to other homes”; (2) “true” to the statement,
“When I feel really bad, I know I can count on my family to help”; (3) “true” to the statement,
“The members of my family and my relatives get along well”; (4) “false” to the statement, “I
hate my whole family”; and (5) “false” to the statement, “I have little to do with my relatives
now.”
26
that the test designers themselves cautioned against drawing any firm conclusions
based upon the test results.
The government next recalled Jacqueline Turner. Turner confirmed that
when Henyard was young, he frequently had moved between her house and
Gamble’s, which were within walking distance. Turner testified that for the
majority of the time, Henyard lived with her, and that when Henyard stayed with
his biological mother, it was because Henyard wanted to do so.
Finally, the government called Edith Ewing, Senior’s common law wife.
Ewing testified that Henyard had lived with her since he was eleven. Ewing
asserted that she loved Henyard and had treated him as one of her own children.
Ewing stated that she provided Henyard with a loving home with rules and
guidance, but that Henyard did not always obey her rules and instructions. Ewing
acknowledged that Henyard’s father was infrequently home because of his long
work hours.
4. Closing Arguments
At closing, the government began by disputing the presence of significant
mitigating factors. The government acknowledged that Henyard was only eighteen
at the time of the crime. However, the government argued that: (1) Henyard’s
efforts to lie to the police and his demeanor during his recorded statement indicated
27
his understanding of the wrongfulness of his actions as well as his relative
intelligence; (2) although Henyard’s biological parents were not always present,
Henyard was raised in loving, relatively stable environments by Turner and Ewing;
(3) there was no evidence that Henyard was under the substantial influence of
drugs or alcohol at the time of the crime; (4) the evidence overwhelmingly pointed
to Henyard as the planner and leader of the crimes and the shooter of the two
children, Jamilya and Jasmine; and (5) Dr. Toomer’s conclusions that Henyard
was emotionally disturbed and incapable of abstract reasoning were not credible in
light of his reliance on machine-scored tests and his dismissal of other trial
evidence of Henyard’s capacities.
The government then argued for four aggravating factors: (1) Henyard had
committed the crimes in part for pecuniary gain, i.e. to steal Ms. Lewis’s car; (2)
Henyard killed the two children, Jamilya and Jasmine, to avoid arrest and eliminate
witnesses to his other crimes that night; (3) Henyard had multiple prior felony
convictions, in particular his 1989 robbery conviction and the additional counts
charged with the Lewis murders; and (4) Henyard’s crime terrorized the Lewises
and was particularly heinous, atrocious or cruel.
In closing, Henyard first addressed the aggravating factors mentioned by the
government, arguing: (1) there was no evidence that the capital offenses – the
28
murders of Jamilya and Jasmine – were committed for pecuniary gain; (2) there
was no evidence that Henyard murdered Jamilya and Jasmine to silence witnesses;
(3) Henyard’s only true “prior” conviction was for his minor role in a minor
robbery; and (4) although all murders are heinous, Jamilya and Jasmine were killed
instantly and without special pain.
Henyard then focused on mitigating factors, including: (1) Henyard was
eighteen at the time of the crime; (2) Henyard was mentally and emotionally young
even for that age, as evidenced by his preference for younger friends and for being
held back in school; (3) Henyard’s judgment at the time of the crime was impaired
by drugs and/or alcohol; (4) Henyard lacked a nurturing childhood because his
mother was a substance abuser and his father was mostly absent from his life; (5)
Henyard behaved well in school; (6) Henyard would be sentenced to six life
sentences if a death penalty were not imposed; and (7) the evidence indicated that
Smalls was the one who shot Jamilya and Jasmine. Henyard suggested that the
jury recommend sentences of life imprisonment.
5. Sentence
After deliberation, the jury unanimously recommended that Henyard be
sentenced to death. The state trial court held a sentencing hearing on August 19,
1994, and announced its factual and legal findings.
29
The state trial court’s findings of fact recounted in detail the facts of
Henyard’s crime. The trial court then noted that: (1) after the crime, “only after
intense questioning, [Henyard] begrudgingly confessed his involvement in these
murders”; (2) Henyard was convicted of two capital felonies and six non-capital
felonies involving violence; and (3) because codefendant Smalls was under sixteen
years of age at the time of the crime, he would not be eligible for the death penalty.
The state trial court then made lengthy findings of law. The trial court found
the following aggravating factors: (1) Henyard had been convicted of prior violent
felonies, specifically a second capital felony and six non-capital felonies involving
violence, including his 1989 juvenile conviction, see Fla. Stat. 921.141(5)(b); (2)
Henyard had murdered Jamilya and Jasmine Lewis during the course of kidnaping
them, see Fla. Stat. 921.141(5)(d); (3) Henyard committed the murders for
pecuniary gain, see Fla. Stat. 921.141(5)(f); and (4) the murders were especially
heinous, atrocious or cruel, see Fla. Stat. 921.141(5)(h).
The state trial court found one specific statutory mitigating factor: the fact
that Henyard was only eighteen at the time of the crimes. See Fla. Stat.
921.141(6)(g). The trial court also noted the fact that codefendant Smalls was not
death eligible, and that disparity in punishment between codefendants is a non-
statutory mitigating factor. The trial court then discussed in detail each of the
30
twenty-three mitigating factors argued by Henyard’s counsel both to the jury and
to the court.9
The state trial court considered together Henyard’s first six mitigating
factors (A-F), which all related to Henyard’s intellectual and emotional immaturity
and his impaired reasoning and impulse control. The trial court noted that all these
factors were based on the testimony of Dr. Toomer, which the court found not
credible. The trial court noted that (1) Dr. Toomer had based his assessment of
Henyard in part on Henyard’s “self-serving, uncorroborated, lie-filled,
contradictory statement” to police; (2) Dr. Toomer based many of his conclusions
9
The twenty-three mitigating factors were that: (A) at the time of the offense, Henyard
functioned emotionally as a thirteen-year-old; (B) Henyard has low intelligence; (C) his low
intelligence led to his placement in special education classes; (D) Henyard has poor impulse
control; (E) Henyard has difficulty reasoning abstractly; (F) Henyard has difficulty foreseeing
the consequences of his actions; (G)-(H) at the time of the crime, Henyard had been using drugs
and alcohol, impairing his judgment; (I)-(J) Henyard’s mother used alcohol and marijuana while
she was pregnant with him; (K) Henyard was born with a skin disorder and was shunned as an
infant; (L) Henyard lacked a father figure; (M) Henyard’s mother was a poor role model; (N)
Henyard had little or no nurturing from his mother and very little contact with his father during
his formative years; (O) Henyard’s mother abused alcohol and drugs throughout Henyard’s life;
(P) Henyard’s limited contact with his mother after moving in with his father taught Henyard
that no one cared for him; (Q) Henyard had an impoverished upbringing; (R) Henyard was raised
in a grossly dysfunctional family with no stable living environment; (S) Henyard was respectful
and behaved well when he was in a stable, structured environment; (T) Henyard cooperated with
investigators; (U) Henyard could adequately adjust to prison life; (V) Henyard would never be
released from prison even if not sentenced to death; and (W) no evidence established that
Henyard was the shooter of the Lewis children.
Although the state trial court characterized these as non-statutory mitigating factors,
some of them arguably reflect upon statutory mitigating factors, in particular Fla. Stat.
921.141(6)(b) (“The capital felony was committed while the defendant was under the influence
of extreme mental or emotional disturbance.”) and Fla. Stat. 921.141(6)(f) (“The capacity of the
defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to
the requirements of law was substantially impaired.”).
31
on machine-scored psychological exams, but failed to take into consideration the
fact that the exams themselves warned not to draw conclusions from the tests and
that the results may be invalid; and (3) Dr. Toomer had made assertions at
Henyard’s suppression hearing that lacked credibility in the eyes of the court. The
trial court also found incredible Dr. Toomer’s claims during the suppression
hearing that “when [Henyard] repeatedly stated that he understood his rights, he
really did not”; that when Henyard “asked for his auntie, [he] was really asking for
an attorney”; and that when Henyard lied to the police, “he was doing this not
because he appreciated the criminality of his conduct, but because he was being
harassed.” The trial court therefore gave “little consideration” to the factors related
to Henyard’s low intelligence, emotional immaturity and poor impulse control.
The trial court found no evidence that Henyard was a substance abuser and
little evidence that he had committed the crimes while under the influence of drugs
or alcohol, and thus gave “very little weight” to these mitigating factors (G-H).
The trial court gave no weight to the facts Henyard cited with respect to his
birth and infancy, finding that there was no evidence that these circumstances had
any impact on him. (I-K).
The trial court disputed factor (L), Henyard’s purported lack of a father
figure. Rather, the court found that Henyard did have a father figure who cared
32
deeply for him, worked seventy to eighty hours a week, did not abuse substances
or break the law, and cared for his family.
The trial court also found factor (M), that his mother was a poor role model,
unproven. The trial court acknowledged that Henyard had little nurturing from his
mother during his formative years (N) but noted that both Turner and Ewing loved
Henyard and provided him with motherly support and stable homes. The trial
court gave this factor “some consideration.” The trial court gave little weight to
the fact that Henyard’s mother had abused alcohol and drugs (O), stating that this
was not a mitigating factor under the circumstances of this case. The trial court
found no evidence that Henyard’s lack of contact with his mother taught him that
no one cared about him (P).
The trial court found that Henyard had proven that he had an impoverished
upbringing (Q), but the court gave this fact little weight. The trial court agreed that
Henyard was born into a dysfunctional family (R), but gave only slight weight to
this factor in light of the stable, caring environment provided by Jacqueline Turner.
The trial court found no evidence that Henyard was well-behaved during times
when he was in a stable, structured environment (S).
The trial court found that though Henyard admitted his involvement in the
crimes, he did so only after lying and while under police pressure. Thus, the trial
33
court denied mitigating factor (T). The trial court gave “very, very little weight” to
the evidence concerning whether Henyard would be able to adjust to prison life
(U). The trial court acknowledged that Henyard would be imprisoned for life if he
were not sentenced to death, but gave this factor (V) “little weight.”
Lastly, the trial court rejected Henyard’s assertion that he had not fired the
shots that killed Jamilya and Jasmine (W). The trial court stated that the evidence
at trial “strongly indicates that the defendant fired the fatal bullets which killed
Jamilya and Jasmine Lewis, and this Court hereby so finds.”
Finding that “the aggravating factors legally outweigh the mitigating
factors,” and considering the jury’s recommended sentence, the trial court
sentenced Henyard to death on each of the murders of Jamilya and Jasmine Lewis.
II. POST-CONVICTION HISTORY
A. Direct Appeal
Henyard timely appealed his conviction and death sentence, raising eleven
assignments of error. In relevant part, Henyard argued that (1) his statements to
the police were improperly admitted; and (2) the trial court erred by denying his
motion to change venue. On December 19, 1996, the Supreme Court of Florida
denied Henyard’s appeal. Henyard v. State, 689 So.2d 239 (Fla. 1996).
After reviewing Henyard’s confession, the Florida Supreme Court found that
34
during the duration of his police interrogation, Henyard had not made even an
equivocal request to cease questioning. Id. at 247. Even assuming arguendo that
Henyard had requested to cease questioning, the Florida Supreme Court held that
the admission of Henyard’s statements represented harmless error in light of the
overwhelming evidence against him. Id. at 248.
With respect to Henyard’s venue argument, the Florida Supreme Court
reviewed the trial record and concluded that “[d]uring the actual voir dire here,
each prospective juror was questioned thoroughly and individually about his or her
exposure to the pretrial publicity surrounding the case.” Id. at 245-46. The Florida
Supreme Court emphasized that “[w]hile the jurors had all read or heard something
about the case, each stated that he or she had not formed an opinion and would
consider only the evidence presented during the trial in making a decision.” Id. at
246. The Florida Supreme Court concluded that “the record demonstrates that the
members of Henyard’s venire did not possess such prejudice or extensive
knowledge of the case as to require a change of venue,” and that therefore “the trial
court did not abuse its discretion in denying Henyard’s motions for a change of
venue.” Id.
B. State 3.850 Proceedings
Pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, on
35
August 5, 1998, Henyard filed in the Circuit Court of Lake County, Florida, a
motion to vacate his conviction and sentence (the “3.850 motion”). Henyard’s
3.850 motion raised nine claims, including a claim of ineffective assistance of
counsel during the penalty phase of his trial. On October 14, 1999, the state 3.850
court held an evidentiary hearing.
1. Henyard’s 3.850 Witnesses
Henyard called seven witnesses in support of his claim of ineffective
assistance of counsel. Henyard’s first two witnesses, Rosa Lee Adams and Lula
Bell Davis, were neighbors of Henyard’s who had observed Henyard growing up.
Adams and Davis testified that Henyard’s mother abused drugs and alcohol, was
promiscuous and was minimally involved in caring for Henyard. Both witnesses
averred that Henyard effectively was raised by many people in the neighborhood
and often went from home to home. On cross-examination, Adams acknowledged
that on the day of the murders, Henyard had a gun in his possession while at
Adams’s house. Neither witness had been contacted by Henyard’s trial counsel
prior to his sentencing.
Henyard next called Jacqueline Turner. Turner’s testimony was entirely
consistent with her testimony during sentencing at trial, but she added certain
details to which she had not testified at trial. These details included: (1) Gamble
36
was promiscuous; (2) Henyard had tried to set fire to Turner’s house on two
occasions when he was seven; (3) while Henyard lived with his father, his father
would periodically put him out of the house; (4) Henyard threw “a temper tantrum”
when Turner tried to register him for the ninth grade because he wanted to stay in
middle school; (5) Henyard frequently skipped school, despite Turner’s efforts to
keep him there; was difficult to control; stole from Turner; and committed other
thefts and crimes; and (6) when Turner visited Henyard in jail prior to trial,
Henyard broke down crying and related that as a child a man named Bruce Kyle
had raped him. Turner admitted that the first time Henyard told her that Kyle
raped him was while he was in jail awaiting trial. Turner testified that she told
Henyard’s counsel, Michael Johnson, about Henyard’s report of sexual abuse.
Henyard next called Angelette Wiley, Turner’s daughter, who knew
Henyard “all his life” and considered him like a younger brother. Wiley testified
that: (1) Henyard’s mother had frequent affairs with both men and women when
Henyard was growing up; (2) neighborhood children would pick on Henyard and
beat him up because of his mother’s behavior; (3) Henyard was in the choir at
church at some point as a child; (4) Turner took good care of Henyard and treated
him as one of her own; and (5) Henyard had told Wiley that he was molested and
raped by Bruce Kyle when he was about seven.
37
Wiley stated that Henyard’s trial counsel never talked to her and she never
conveyed any information to Henyard’s lawyers prior to trial. Wiley was
inconsistent as to whether Henyard’s trial counsel tried to contact her. At first,
Wiley acknowledged that before the trial, Henyard’s counsel had left messages for
her with Turner and that she had made little effort to return the messages. Wiley
tried to retract this testimony later, stating that she had never been aware of any
efforts by Henyard’s counsel to contact her.
Henyard’s fifth witness was Dr. Russell Bowers, an expert in
neuropsychology and clinical psychology. Dr. Bowers had conducted a
neuropsychological evaluation and clinical interview of Henyard five years after
the trial. Dr. Bowers related what Henyard had told him about his upbringing,
including his mother’s problems and his moving between households. Dr. Bowers
also mentioned that Henyard had asserted that (1) Henyard was hyperactive and
was placed in emotionally handicapped classes in the first grade; (2) Henyard
never got along with Ewing, his father’s common law wife, and began stealing
because she treated him poorly; and (3) he began using marijuana and alcohol
when he was eleven, although he was never seriously intoxicated. Dr. Bowers
gave no indication that Henyard had reported any history of sexual abuse.
Dr. Bowers also administered psychological tests. The test results and Dr.
38
Bowers’s interaction with Henyard led Dr. Bowers to conclude that (1) Henyard’s
intelligence was “low average to average”; (2) Henyard showed mild slowing in
one test of attention, but also performed normally on other tests, including tests for
abstract thinking and motor skills; and (3) Henyard showed no evidence of
excessive cognitive impairment that might be indicative of fetal alcohol syndrome,
and the tests did not support such a diagnosis.
Henyard’s sixth witness was Katherine Ann McCoy, who was roughly
Henyard’s age and grew up across the street from Henyard’s mother’s home.
McCoy testified that her mother would not allow her to go over to Henyard’s
mother’s place because Henyard’s mother dated women. McCoy acknowledged
that she did not know what Henyard’s home life had been like and denied that
Henyard suffered teasing or harassment at the hands of other neighborhood
children.
Finally, Henyard called Trena Lenon, who considered herself Henyard’s
sister. Lenon moved into Jacquelyn Turner’s home in Eustis, Florida, when she
and Henyard were about fourteen years old. Lenon stated that Henyard told her
that when Henyard stayed with his father and Ewing in Pahokee, Florida, Ewing
and Henyard did not get along, and that Ewing beat him and cussed at him. Lenon,
however, never observed those interactions directly. Lenon also testified that
39
while Henyard was in jail awaiting trial, Henyard had told her during a phone
conversation that he had been sexually abused as a child by Bruce Kyle.
Lenon stated that Henyard’s trial counsel had never spoken to her before he
was tried and sentenced. However, Lenon also stated that she was living in Saint
Petersburg at a women’s residence for about four months at the time that Henyard
was tried and sentenced.
2. Government’s 3.850 Witnesses
The government called six witnesses. The government’s first witnesses
were Henyard’s father, Senior, and Senior’s common law wife, Ewing. Senior
testified that to his knowledge, Ewing had never spanked, beaten, or thrown
anything at Henyard. Ewing testified that she had spanked Henyard once or twice
with a belt, but otherwise had not beaten him or thrown anything at him. Ewing
explained that she had punished Henyard because he had stolen from her multiple
times, including stealing a VCR and a gun. Ewing testified that she loved
Henyard.
The government’s next three witnesses were all involved in Henyard’s
defense at trial: Henyard’s lead trial counsel, Thomas Michael Johnson, co-counsel
Mark Nacke,10 and investigator J.T. Williams. Johnson testified that he had been a
10
Bill Stone also acted as co-counsel and participated in the collection of mitigation
evidence. Stone did not testify at the hearing.
40
public defender for nearly his entire career between 1981 and 1995, at which point
Johnson became a circuit judge. At the time of Henyard’s trial, Johnson had
previously tried five capital cases and perhaps 60 to 80 major felony cases.
Johnson and the other witnesses recounted the investigation they did on
Henyard’s case. Johnson and the defense team met with Henyard in jail on many
occasions, asking him to identify any individuals who were significant or even
insignificant in his life in order to develop a mitigation case. Johnson met with
Henyard’s mother and Turner on many occasions, as well as with numerous family
members. Johnson went to Pahokee, met with Ewing and Henyard’s father, and
met with all of Henyard’s school teachers. Johnson retained two psychiatrists, Dr.
Toomer11 and Dr. Elizabeth McMann,12 to evaluate Henyard. Johnson reviewed
Henyard’s school and medical records.
Other investigators assisted Johnson in meeting yet more potential
witnesses. Johnson’s notes, for example, indicate that Steve Bevill (an investigator
who did not testify at the hearing) visited Pahokee, Florida, and met with Ewing,
with Henyard’s grandmother, with Ewing’s next-door neighbor, and with multiple
11
Johnson recounted that he prepared Dr. Toomer by providing him with depositions of
Gamble and Turner, with Henyard’s recorded interrogation with police, and with other trial
documents. He also consulted Dr. Toomer on a number of occasions.
12
Dr. McMann did not testify at sentencing. Johnson testified that Dr. McMann herself
stated that it would not be wise to call her as a witness because she saw insufficient evidence to
support any of the three statutory mitigating circumstances that are psychological in nature.
41
officials at Henyard’s school, including staff in the cafeteria. Investigator Michael
Upton went to Eustis High School and the school board office to speak with
witnesses and obtain records. Johnson stated that it was difficult to track down
many people, but that he and the defense team made a concerted, good faith effort
to find everyone Henyard and others mentioned as possibly possessing mitigating
evidence.
Johnson explained one of his tactical decisions during the penalty phase.
Johnson explained that he decided not to introduce evidence that Henyard and
Ewing did not get along, because Ewing regarded Henyard as a “little thief” and
Johnson did not want to open the door to introduction of that evidence.
Johnson did not remember Henyard telling him about being sexually abused.
Johnson acknowledged that in his trial notes, Johnson had recorded that Henyard
had told the defense that Bruce Kyle sexually abused him when he was eight or
nine. However, Johnson also affirmed that his case file included the notes of a
jailhouse doctor who evaluated Henyard prior to trial, and that these notes stated
that Henyard had told the doctor he had no history of sexual abuse. Co-counsel
Nacke and investigator Williams also could not remember any claim by Henyard
that he had been sexually abused, and their notes showed no such statements by
Henyard. In fact, Williams’s notes indicated that, prior to trial, he had asked
42
Henyard whether he had suffered sexual abuse, and Henyard had stated that he had
not been sexually abused. Because none of Henyard’s team could recall ever being
advised about the sexual abuse, they could not state why they did not use that
evidence during the penalty phase.
Johnson did not recall whether Henyard had been placed on suicide watch
when first jailed. Johnson also stated that he had never seen any reason to
investigate further the possibility that Henyard suffered from fetal alcohol
syndrome.13
Finally, the government called Dan Pincus, a registered nurse. In 1994,
Pincus was the medical department supervisor at the Lake County jail, where
Henyard was in custody awaiting trial. Pincus testified that he had treated Henyard
at the time of his purported suicide attempt by tying the cord of his laundry bag
around his neck. Pincus testified that he did not believe it was a legitimate suicide
attempt because the knot was not tight and because Henyard pretended to be
unconscious when he clearly was not.
3. 3.850 Court’s Ruling
On April 11, 2002, the state 3.850 court denied Henyard’s motion for post-
conviction relief. The 3.850 court found, in relevant part, that: (1) although
13
Defense counsel did, however, contact Henyard’s birth hospital and obtain his birth
records.
43
evidence existed that Ewing had spanked Henyard, Ewing provided him a loving
and stable home, and trial counsel wisely chose not to introduce this evidence
because it would have allowed the jury to hear about Henyard’s frequent acts of
theft; (2) the evidence that neighborhood children teased Henyard and beat him
was not proof of ineffective assistance of counsel because the jury was presented
with such evidence at sentencing; (3) there was no strong evidence that Henyard
abused drugs or alcohol, and trial counsel made a reasonable decision not to
introduce such evidence at sentencing; (4) counsel made a wise choice not to
introduce evidence of Henyard’s suicide attempt in jail because it appeared
insincere and manipulative; (5) no evidence supported Henyard’s claim that his
counsel inadequately prepared Dr. Toomer to testify; and (6) no evidence
supported Henyard’s claim that he suffered from fetal alcohol syndrome, so his
counsel’s decision not to introduce such evidence was not ineffective assistance of
counsel.
With respect to Henyard’s argument that his trial counsel should have
investigated whether he was sexually abused and should have introduced evidence
of the abuse at sentencing, the 3.850 court found that (1) the evidence was
inconsistent with regard to whether Henyard was sexually abused and particularly
with regard to whether trial counsel had reason to know that Henyard had told
44
Turner, Lenon and Wiley that he had been sexually abused, and thus his trial
counsel had not performed unreasonably; and (2) even had Henyard’s counsel
introduced the hearsay evidence that Henyard had suffered sexual abuse, that
evidence would not have affected the jury’s sentencing recommendation.
4. Florida Supreme Court 3.850 Ruling
Henyard timely appealed the trial court’s denial of his 3.850 motion. On
May 27, 2004, the Florida Supreme Court affirmed the denial of post-conviction
relief. Henyard v. State, 883 So.2d 753 (Fla. 2004). With respect to Henyard’s
claim of ineffective assistance of counsel during the penalty phase, Henyard argued
that trial counsel was deficient for failing to present evidence of (1) his difficult
childhood, as described by Adams, Davis, Wiley and Turner; (2) his physical abuse
by Ewing; (3) his preference for younger friends and the harassment he suffered at
the hands of other children; (4) his sexual abuse by Kyle; (5) his drug and alcohol
use; and (6) his suicide attempt in jail.
With respect to the first claim, the Florida Supreme Court found that while
Henyard presented four new witnesses to testify to Henyard’s difficult childhood,
their testimony “was substantially similar to and cumulative with testimony that
was actually presented during the penalty phase.” Id. at 759.
Regarding the alleged abuse by Ewing, the Florida Supreme Court found
45
little evidence to suggest that Henyard suffered continual abuse by Ewing. Id. at
760-61. In any event, the Florida Supreme Court concluded that Henyard’s
counsel made a reasonable strategic choice not to introduce this evidence in order
to prevent evidence of any thefts from being introduced. Id. at 761.
The Florida Supreme Court found Wiley’s testimony regarding Henyard’s
mental age and his preference for younger friends cumulative with the more
extensive similar testimony presented at sentencing by Turner, Nyoka Wiley, and
Dr. Toomer. Id.
With respect to sexual abuse, the Florida Supreme Court initially observed
that all evidence that Henyard was sexually abused came from hearsay witnesses
repeating what Henyard had told them. Id. at 762. The Florida Supreme Court
also noted that prior to trial, Henyard twice had denied experiencing sexual abuse,
first when he was asked by Williams and later when he was interviewed by the
jailhouse doctor. Id. Under these circumstances, the Florida Supreme Court found
that his trial counsel had not clearly performed deficiently by failing to introduce
this evidence at sentencing. Id. Alternatively, the Florida Supreme Court found
that second-hand evidence of sexual abuse a decade prior to the crimes would not
have affected the jury’s sentencing recommendation. Id.
The Florida Supreme Court rejected Henyard’s argument that his trial
46
counsel should have introduced evidence of his chronic use of alcohol, finding no
evidence to support the allegation that Henyard did, in fact, abuse alcohol or drugs.
Id. at 762-63.
Finally, the Florida Supreme Court found that trial counsel had not
performed deficiently by choosing not to introduce evidence of Henyard’s suicide
attempt in light of the fact that the attempt might have been viewed as
manipulative. Id. at 763.
C. Federal Habeas Petition
Henyard timely filed a petition for a writ of habeas corpus in the District
Court for the Middle District of Florida. See 28 U.S.C. § 2254. On August 1,
2005, the district court denied Henyard’s § 2254 petition. Henyard timely
appealed to this Court, and we granted a Certificate of Appealability on the three
issues identified above.
III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), our review of a final state habeas
judgment “is greatly circumscribed and is highly deferential to the state courts.”
Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002). First, § 2254(e)(1)
instructs us to be highly deferential to state court factual determinations, stating
47
that “a determination of a factual issue made by a State court shall be presumed to
be correct,” and that “[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Haliburton v. Sec’y for Dep’t of Corr., 342 F.3d 1233, 1238 (11th Cir.
2003).
Second, for any claim adjudicated on the merits in state court, § 2254(d)
allows federal habeas relief only where the state court adjudication “(1) resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d); Haliburton, 342 F.3d at 1238.
IV. HENYARD’S CONFESSION
Henyard contends that the state trial court erred in denying his motion to
suppress his confession. Henyard argues that viewed in light of the totality of the
circumstances, his statements to police were involuntary. We disagree because the
evidence overwhelmingly supports the rulings by the state trial court, the Florida
Supreme Court and the federal district court that Henyard’s confession was
voluntary and admissible.
48
The suppression-hearing testimony established that Henyard himself asked
Annie Neal to drive him to the police station. Once there, Henyard got out of the
car, entered the police station, and spoke with the police, all on his own accord.14
At about 1:30 p.m., the police realized that Henyard’s initial assertion that he was
only a witness to the murders was a lie, and that Henyard was in fact directly
involved in them. The police immediately placed Henyard in custody, verified that
he was eighteen and that he could read and write, and read him his Miranda rights.
Henyard waived his rights both orally and in writing. Only after waiving his rights
did Henyard make the incriminating statements eventually admitted at trial.
Henyard claims that his Miranda waiver was not voluntary given the
inquiries he made to the police. As quoted above, Henyard asked how long the
interrogation would continue and requested the presence of his auntie for any
polygraph test. These inquiries, however, do not constitute even an equivocal
invocation of the right against self-incrimination. See Delap v. Dugger, 890 F.2d
285, 291-93 (11th Cir. 1989) (holding that a suspect’s questions regarding how
much longer an interview will last do not constitute even an equivocal invocation
14
Although Henyard claims that he was “tricked into appearing at the police station by a
police informant,” Brief at 26, this is a wholly inaccurate portrayal of the facts. Moreover,
Henyard has previously acknowledged that his visit to the police station was voluntary. See,
e.g., Petitioner’s Dist. Ct. Brief, at 10 (stating that during the suppression hearing “it was
established that [Henyard] voluntarily went to the Eustis Police Department on January 31,
1993”).
49
of his Fifth Amendment rights); Moore v. Dugger, 856 F.2d 129, 134, 134 n.1
(11th Cir.1988) (finding that suspect’s inquiry “[w]hen will you all let me go
home?” did not constitute even an equivocal invocation of the right to terminate
questioning).
In addition, the police twice gave Henyard his Miranda rights and twice told
him that he did not have to answer their questions. Henyard waived his rights
when the police first read them to him, at around 1:30 p.m. At around 2:35 p.m.,
Henyard waived his rights a second time, when Officer O’Connor reminded him of
his rights and inquired again whether he wanted to waive them. It was after this
second waiver of his rights that Henyard admitted to carjacking the Lewises,
attempting to rape Dorothy Lewis, shooting Dorothy Lewis three times, and
discarding the bodies of Jasmine and Jamilya Lewis. Henyard’s brief does not
draw our attention to any place in the transcript after 2:35 p.m. where Henyard
expressed even an ambiguous desire to end the questioning. Rather, during this
period of the interrogation in which Henyard made the incriminating statements
eventually admitted at trial, he never suggested that he wanted the interrogation to
end or sought the presence of an attorney.
We also reject Henyard’s claim that his confession was involuntary in light
of his age and immaturity. Henyard was eighteen when he confessed, but even
50
were we to analyze Henyard’s confession as though he were a juvenile at the time,
we still find that his confession was voluntary. The totality of the circumstances
indicate that (1) the police explained Henyard’s rights to him twice; (2) Henyard’s
intelligence, although below average, was not so low that he could not understand
his rights; (3) the transcript of the interrogation and Henyard’s responses to the
police give no indication that he was confused or that he misunderstood the
seriousness of the interrogation; (4) the police did not engage in any trickery,
deception, or improper interrogation tactics; and (5) Henyard had previous
experience with the justice system. See Fare v. Michael C., 442 U.S. 707, 726, 99
S. Ct. 2560, 2572 (1979); United States v. Kerr, 120 F.3d 239, 241-42 (11th Cir.
1997). Accordingly, we conclude that the Florida Supreme Court’s determination
that Henyard’s confession was properly admitted at trial was neither “contrary to,”
nor “an unreasonable application” of, United States Supreme Court precedent.
V. CHANGE OF VENUE
Henyard next argues that his right to a fair trial was violated because the jury
was not impartial. “[T]he Fourteenth Amendment’s due process clause . . .
safeguards a defendant’s Sixth Amendment right to be tried by a panel of impartial,
indifferent jurors.” Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir. 1985)
(quotation marks and citation omitted).
51
Specifically, Henyard claims that he should have been granted a change of
venue because the jury pool in Lake County, Florida, was tainted by prejudicial
pre-trial publicity. The state trial court denied Henyard’s motion for change of
venue, and the Florida Supreme Court affirmed. The district court denied
Henyard’s § 2254 petition as to his venue claim.
An examination of the over-1,000-page transcript from voir dire shows that
while most of the eventually seated jurors remembered the basic details of the
crime, they remembered no details about the victims, the evidence, the
investigation, or Henyard and Smalls. None of the eventual jurors had reached
even a tentative opinion about the case, and all expressed that they would be able
to be fair and to reach a verdict based on the evidence at trial.
Henyard also fails to show that the pretrial publicity was so ubiquitous and
inflammatory that prejudice must be presumed despite the lack of any bias or
prejudice expressed by the eventual jurors during voir dire. We have stated that
the jury pool should be presumed to be prejudiced only in the very rare case where
pretrial publicity “so pervades or saturates the community as to render virtually
impossible a fair trial by an impartial jury drawn from that community.” Coleman,
778 F.2d at 1490 (quotation marks and citation omitted); see also Spivey v. Head,
207 F.3d 1263 (11th Cir. 2000). “[T]he burden placed upon the petitioner to show
52
that pretrial publicity deprived him of his right to a fair trial before an impartial
jury is an extremely heavy one.” Coleman, 778 F.2d at 1537. It is only where a
“barrage of inflammatory publicity immediately prior to trial” inspires a “huge
wave of public passion” against the defendant that the local jury pool should be
presumed unable to judge the defendant impartially. Patton v. Yount, 467 U.S.
1025, 1033, 104 S. Ct. 2885, 2889 (1984) (quotation marks, citations and
punctuation omitted).
Although there was substantial local news coverage of the crime and the
arrests, the publicity surrounding this case was not at a level where prejudice to the
entire jury pool should have been presumed, requiring a change of venue. While
some of the newspaper articles in the record implicate Henyard and discuss the
heinousness of his crime, most of the articles contain little more than factual
summaries of the crime and investigation. The record contains no evidence of the
television or radio coverage of the crime and Henyard’s involvement in it.
Moreover, two or three of the articles themselves are the only weak evidence in the
record that any general public sentiment had arisen about the crime. For all of
these reasons, the Florida Supreme Court’s determination that Henyard’s motion
for change of venue was properly denied was neither “contrary to,” nor “an
unreasonable application” of, United States Supreme Court precedent.
53
VI. INEFFECTIVE ASSISTANCE OF COUNSEL AT PENALTY PHASE
Henyard contends that trial counsel’s performance during the penalty phase
was unconstitutionally deficient under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984). To prevail on this claim, Henyard must show both that his
counsel performed deficiently at the penalty stage of trial and that his defense was
prejudiced by that deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Where, as here, the petitioner claims his counsel was constitutionally
deficient during the penalty phase, we consider whether counsel reasonably
investigated possible mitigating factors and made a reasonable effort to present
mitigating evidence to the sentencing court. See Grayson v. Thompson, 257 F.3d
1194, 1225 (11th Cir. 2001).
Even where a petitioner demonstrates that his counsel’s performance at
sentencing was deficient, he must also show that he was prejudiced by his
counsel’s deficient performance. “It is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Rather, “the question is whether
there is a reasonable probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating circumstances did
not warrant death.” Id. at 695, 104 S. Ct. at 2069.
54
In his ineffective assistance claim, Henyard contends that his trial counsel
deficiently failed to present potentially mitigating evidence concerning Henyard’s
neglectful and difficult childhood. Specifically, Henyard contends that his trial
counsel failed to investigate and/or present evidence of: (1) his physical abuse by
Ewing; (2) his preference for younger friends; (3) the harassment he suffered from
other children; (4) his chronic use of alcohol; (5) his suicidal attempt in jail; and
(6) his sexual abuse by Kyle. Henyard also claims that trial counsel inadequately
prepared Dr. Toomer, his mental health expert.
The state 3.850 court rejected these contentions after an evidentiary hearing.
Applying the Strickland framework, the Florida Supreme Court affirmed, finding
both that Henyard’s counsel did not perform deficiently during the penalty phase,
and that Henyard had failed to demonstrate prejudice in any event. Henyard v.
State, 883 So.2d 753 (Fla. 2004). Henyard reiterated these claims in his § 2254
petition, and the district court denied relief. For several reasons, we conclude that
the Florida Supreme Court’s ruling was neither “contrary to,” nor “an unreasonable
application” of, United States Supreme Court precedent.
First, as shown at the 3.850 evidentiary hearing, Henyard’s trial team of
three attorneys and three investigators conducted extensive pre-trial investigation
and preparation of mitigating evidence for the penalty phase of trial. To develop
55
Henyard’s mitigation case, Henyard’s defense team interviewed him on many
occasions, cataloguing everyone in Henyard’s life who might act as a mitigation
witness. Defense counsel met with and interviewed Henyard’s biological mother,
Gamble, and his Godmother, Turner, on numerous occasions. Defense counsel
traveled to Pahokee, Florida, also on numerous occasions, to meet with and
interview Henyard’s father, Senior, and Senior’s common law wife, Ewing. In
addition, defense counsel called and met with Henyard’s “siblings” – the other
children who were raised with him in Turner’s and Senior’s homes.
The defense team also met with and interviewed all of Henyard’s school
teachers, other school officials, and many of his neighbors both in Eustis, Florida,
and in Pahokee, Florida. The defense team reviewed all of Henyard’s school and
medical records, including records from his birth. Counsel also retained two
psychiatrists, Dr. Toomer and Dr. Elizabeth McMann, to evaluate Henyard for
possible mitigating evidence.
Second, based on this extensive investigation, defense counsel introduced
eight mitigation witnesses during the penalty phase of trial, including Gamble,
Turner, Senior, and Nyoka Wiley, Henyard’s Godsister. These witnesses testified
extensively regarding Henyard’s difficult and unstable childhood, including the
facts that: (1) Gamble, his biological mother, abused alcohol and drugs during both
56
pregnancy and Henyard’s early childhood, was frequently arrested, and often
abandoned Henyard; (2) because of his mother’s problems, Henyard was raised
mostly by Turner until age eleven, but often bounced between her home and his
mother’s; (3) Henyard’s father, Senior, was mostly uninvolved in his life until he
turned eleven, when Senior took Henyard to live with him and Ewing in Pahokee;
(4) while Henyard lived with his father, he had virtually no contact with Gamble,
his biological mother; and (5) Henyard was teased by neighborhood children and
resisted moving to the ninth grade because he preferred the company of younger
children.
Third, Henyard has not shown that his counsel was ineffective or that he was
prejudiced by any of the six alleged evidentiary failures outlined above. As to the
alleged failure to introduce evidence of Ewing’s corporal punishment, we agree
with the Florida Supreme Court that this argument is meritless. Henyard v. State,
883 So.2d at 760-61. For one, the evidence showed that any physical “abuse” by
Ewing was at most limited. More importantly, Henyard’s trial counsel made a
reasonable strategic decision not to present this evidence. See Fugate v. Head, 261
F.3d 1206, 1223-24 (11th Cir. 2001) (stating that strategic decisions by counsel
cannot be the basis for ineffective assistance of counsel claims). Namely, counsel
was concerned that introducing Ewing’s testimony that she had punished Henyard
57
would open the door to harmful cross-examination of Ewing, in which Ewing
would explain that she had punished Henyard because he frequently misbehaved
and stole from her.
As to Henyard’s pattern of seeking out younger children as companions due
to his lower I.Q. and emotional immaturity, this evidence already was presented by
a number of mitigation witnesses at sentencing. Both Turner and Nyoka Wiley
testified at sentencing to the fact that Henyard preferred the company of younger
children and resisted advancement in school. Dr. Toomer testified that Henyard
had a low-average I.Q. and the mental and emotional maturity of a thirteen-year-
old. Although Henyard identified and presented additional witnesses to these facts
in the state 3.850 hearing, “[a] petitioner cannot establish ineffective assistance by
identifying additional evidence that could have been presented when that evidence
is merely cumulative.” Van Poyck v. Florida Dep’t of Corr., 290 F.3d 1318, 1324
n. 7 (11th Cir. 2002).15
15
In this appeal, Henyard does not challenge his death sentence on the basis of his alleged
mental and emotional age of thirteen. In particular, Henyard raises no claims pursuant to Roper
v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 1200 (2005) (finding a sentence of death
unconstitutional as applied to criminals who were chronologically younger than eighteen at the
time of their crime). Henyard raised such a claim on April 26, 2005, when he moved in the
district court for abeyance of § 2254 proceedings while he filed a Roper motion in the state trial
court. Henyard’s state court motion argued that “[t]he evolving standards of decency in society
prohibit the cruel and unusual execution of an individual who was the functional equivalent of a
13 year old at the time of the offense.” The district court denied Henyard’s motion for abeyance,
and the Florida state courts eventually rejected his Roper motion.
Because Henyard does not reassert his Roper claim in district court or in this appeal, that
58
As to evidence that Henyard was harassed and teased by neighborhood
children, again, trial counsel did not fail in this regard because Turner testified
during the penalty phase concerning the teasing suffered by Henyard. As such,
further testimony with respect to these facts would have been cumulative.
Moreover, even at the state 3.850 hearing, the evidence suggested at most that
Henyard experienced sporadic and certainly not severe teasing.
As to Henyard’s supposedly chronic use of alcohol, the Florida Supreme
Court found no evidentiary basis for believing that Henyard was a chronic
substance abuser. Henyard v. State, 883 So.2d at 762-63. The only evidence that
Henyard used alcohol or drugs came from Dr. Bowers, who testified at the state
3.850 hearing. Dr. Bowers stated that according to Henyard, he began drinking
beer and using marijuana between ages eight and ten, but his use of alcohol and
marijuana decreased when he moved to Pahokee to live with his father. Given that
this is the only evidence of drug or alcohol use by Henyard, the Florida Supreme
Court’s finding – that Henyard failed to establish in the first place the fact that he
was a chronic substance abuser – was not unreasonable. Henyard also fails to
claim is not before us. However, we note that (1) Dr. Toomer was the only source of any
evidence suggesting Henyard had a mental and emotional age of thirteen; (2) the trial court gave
Dr. Toomer’s testimony little weight, finding much of it incredible; and (3) Dr. Toomer also
testified that Henyard’s I.Q., though low, was within the average range, and that Henyard was
able to appreciate the criminality of his conduct.
59
establish that the presentation of evidence of his periodic use of drugs and alcohol
would have affected sentencing in any way.
As to Henyard’s attempted suicide in jail while awaiting trial, the nurse at
the jail where Henyard was housed testified that in his view, Henyard actually
faked his suicide attempt in order to curry favorable treatment in jail. Counsel’s
strategic decision to avoid presenting evidence of Henyard’s potentially staged
suicide attempt was reasonable and thus cannot be the basis for a claim of
ineffective assistance of counsel. See Fugate, 261 F.3d at 1223-24.
As to evidence that Henyard was sexually abused as a child by Bruce Kyle,
the Florida Supreme Court found that trial counsel had not performed deficiently
by failing to present such evidence during the penalty phase. The Florida Supreme
Court’s determination was not unreasonable. Although the notes of Henyard’s
lead counsel indicated that Henyard at one time had mentioned being sexually
abused, lead counsel did not remember Henyard actually ever discussing sexual
abuse with him. It is clear that Henyard’s defense team made a concerted effort to
investigate any history of sexual abuse, and they had reason to believe no such
history existed. Henyard’s assistant defense counsel, Williams, specifically asked
him about sexual abuse, and Henyard told him that he was never sexually abused.
Further, the notes of the jailhouse doctor who evaluated Henyard prior to trial –
60
notes that Henyard’s defense team obtained prior to trial – indicated that Henyard
had explicitly denied any history of sexual abuse.
In addition to the jailhouse doctor, Henyard’s defense team hired two
psychological experts, Dr. Toomer and Dr. McMann, to evaluate Henyard prior to
trial expressly to aid in his mitigation case. Neither Dr. Toomer nor Dr. McMann
stated that Henyard had mentioned any history of sexual abuse nor testified in any
way about any such alleged abuse. Even Dr. Bowers, Henyard’s psychological
expert at the 3.850 hearing, gave no indication that Henyard had mentioned a
history of sexual abuse. Of the three witnesses Henyard presented at the 3.850
hearing on the topic of sexual abuse, the defense team interviewed Turner
extensively prior to trial and did not recall her mentioning that Henyard had
reported to her being sexually abused. The defense team made unsuccessful efforts
to contact Angelette Wiley. Defense counsel did not contact Lenon prior to trial,
but at the time of Henyard’s trial and sentencing, Lenon was living in a women’s
home in St. Petersburg.
Given Henyard’s multiple denials of any history of sexual abuse and trial
counsel’s extensive and diligent efforts to build a mitigation case, the Florida
Supreme Court’s determination that counsel did not perform deficiently in this
regard was neither “contrary to,” nor “an unreasonable application” of, United
61
States Supreme Court precedent. See Callahan v. Campbell, 427 F.3d 897, 934
(11th Cir. 2005), petition for cert. filed (Apr. 13, 2006) (No. 05-10404)
(concluding that counsel did not perform deficiently by failing to investigate
allegation of sexual abuse because counsel received no indication such abuse
occurred); Holladay v. Haley, 209 F.3d 1243, 1252 (11th Cir. 2000) (holding that
counsel’s failure to investigate defendant’s psychological problems was not
deficient performance because there was no indication that such psychological
problems existed); Funchess v. Wainwright, 772 F.2d 683, 689 (11th Cir.1985)
(finding counsel acted reasonably in not investigating defendant’s psychological
deficiencies because pre-trial psychological exam did not indicate problems and
defendant did not tell counsel of psychological problems).
In addition, as the Florida Supreme Court noted, the only evidence of sexual
abuse came from brief, second-hand accounts, and Henyard presented no testimony
from his various experts concerning how the alleged sexual abuse from ten years
prior to the crimes affected him as to the crimes in issue. Henyard v. State, 883
So.2d at 761. We therefore agree with the Florida Supreme Court that even
assuming arguendo that his trial counsel performed deficiently with respect to the
evidence of sexual abuse, Henyard has failed to show any prejudice arising from
that failure.
62
Finally, Henyard contends that trial counsel inadequately prepared Dr.
Toomer, his mental health expert. This argument is also without merit. Henyard’s
trial counsel prepared Dr. Toomer by providing him with depositions, trial
documents, and Henyard’s recorded interrogation with police, and by consulting
with Dr. Toomer on a number of occasions. Henyard’s trial counsel also retained
another psychological expert, who did not testify because she herself stated that it
would not be wise to call her as a witness. Moreover, as stated by the Florida
Supreme Court, Dr. Bowers, Henyard’s expert during the 3.850 proceedings,
explicitly indicated that he found no error or impropriety in Dr. Toomer’s
preparation. Henyard v. State, 883 So.2d at 764.
In sum, none of the evidence presented in Henyard’s 3.850 hearing
suggested the presence of any additional statutory mitigating factors or the absence
of any of the aggravating factors found at trial. None of Henyard’s evidence leads
us to doubt that his trial counsel diligently and strenuously worked to develop as
complete a mitigation case as possible. Nor does any of the new testimony counter
the overwhelming evidence of the brutal, gruesome, and aggravated nature of
Henyard’s crimes, in which Henyard carjacked and kidnaped a mother and her two
young children, raped the mother in her children’s presence, shot her four times,
and then executed her children from close range.
63
VII. CONCLUSION
For the foregoing reasons, the Florida Supreme Court’s denial of habeas
relief was neither contrary to, nor involved an unreasonable application of, clearly
established federal law as determined by the United States Supreme Court. See 28
U.S.C. § 2254(d)(1). Accordingly, we affirm the district court’s denial of
Henyard’s § 2254 petition.
AFFIRMED.
64
BARKETT, Circuit Judge, concurring.
I agree that the district court’s denial of Henyard’s petition for habeas corpus
must be affirmed because Henyard has not established that the state courts’
rejection of the claims he makes here was contrary to, or an unreasonable
application of, clearly established federal law pursuant to the requirements of
AEDPA. See 28 U.S.C. § 2254(d)(2); Williams v. Taylor, 529 U.S. 362, 405
(2000) (applying the standard set forth in § 2254(d)(2)).
I write to address the separate and troubling issue of Henyard’s mental age.
There is no dispute that Henyard committed a horrifying and heinous crime. There
is also no dispute that, notwithstanding Henyard’s eighteen years of chronological
age, he functions at the emotional level, or has the “mental age,”1 of a thirteen year
old.2 The Supreme Court has stated that “[c]apital punishment must be limited to
those offenders who commit ‘a narrow category of the most serious crimes’ and
1
“‘Mental age’ is commonly understood is the chronological age equivalent of the
person’s highest level of mental capacity. That is, judging only from the person’s cognitive and
behavioral capacities, what age would we typically associate with this level of functioning? It is
an incapacity to think or act on a higher level of functioning, not merely a failure to do so.”
James Fife, Mental Capacity, Minority, and Mental Age in Capital Sentencing: A Unified Theory
of Culpability, 28 Hamline L. Rev. 237, 261 (2005) (footnote omitted) (citing Atkins v. Virginia,
536 U.S. 304, 310 (2002)).
2
According to the Florida Supreme Court, the trial court found that, among other
mitigating factors, Henyard was “acting under an extreme emotional disturbance and his
capacity to conform his conduct to the requirements of law was impaired,” Henyard v. State, 689
So. 2d 239, 244 (Fla. 1996), and that “the defendant functions at the emotional level of a
thirteen year old and is of low intelligence,” id.
65
whose extreme culpability makes them ‘the most deserving of execution.’” Roper
v. Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins, 536 U.S. at 319).
The twofold test for whether capital punishment violates the Eighth
Amendment assesses its furtherance of the two major goals of punishment—
retribution and deterrence. Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality).
The test for retribution measures the culpability of the defendant or the class of
offenders to which the defendant belongs. Tison v. Arizona, 481 U.S. 137, 149
(1987) (“The heart of the retribution rationale is that a criminal sentence must be
directly related to the personal culpability of the criminal offender.” (emphasis
added)); see also Penry v. Lynaugh, 492 U.S. 302, 337 (1989) (O’Connor, J.)
(“[V]irtually all of the States with death penalty statutes that list statutory
mitigating factors include as a mitigating circumstance evidence that ‘[t]he
capacity of the defendant to appreciate the criminality of his conduct or to conform
his conduct to the requirements of law was substantially impaired.’” (footnote
omitted; second alteration in original)).
The Court considered a defendant’s culpability to be critical in Atkins:
Mentally retarded persons frequently know the difference between
right and wrong and are competent to stand trial. Because of their
impairments, however, by definition they have diminished capacities
to understand and process information, to communicate, to abstract
from mistakes and learn from experience, to engage in logical
reasoning, to control impulses, and to understand the reactions of
66
others. There is no evidence that they are more likely to engage in
criminal conduct than others, but there is abundant evidence that they
often act on impulse rather than pursuant to a premeditated plan, and
that in group settings they are followers rather than leaders. Their
deficiencies do not warrant an exemption from criminal sanctions, but
they do diminish their personal culpability.
536 U.S. at 318.
Likewise, diminished culpability is what motivated the Court’s holding
invalidating the juvenile death penalty in Simmons, wherein the Court stated that
“[t]he same conclusions follow from the lesser culpability of the juvenile offender.
. . . Retribution is not proportional if the law’s most severe penalty is imposed on
one whose culpability or blameworthiness is diminished, to a substantial degree, by
reason of youth and immaturity.” Simmons, 543 U.S. at 571. “Once the
diminished culpability of juveniles is recognized, it is evident that the penological
justifications for the death penalty apply to them with lesser force than to adults.”
Id.3 Accordingly, the Court held that the Eighth Amendment prohibits the
imposition of capital punishment on offenders under the age of eighteen at the time
of offense.
3
“What mental capacity and minority share as avoidances is their deviation from the adult
norm of knowledge and behavior. The rationale for identifying this basis for mitigation appears
to be fairness: it is unfair to hold someone to a standard of conduct which she cannot attain given
her current condition. Because one lacking the ability to reach this level of conduct does not
breach the standard voluntarily, and so would not be deterred from breach by punishment, there
is no legitimate basis for punishment under conventional punishment theory.” Fife, supra, at
260-61.
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The characteristics identified by the Court as those which diminish
culpability and thus militate against the imposition of the death penalty for children
under the chronological age of 18 as well as the mentally retarded appear equally
present in those with a mental age of less than eighteen years. The mere fact of a
borderline, or even high IQ in an adult defendant with a mental age of a child does
not necessarily render that defendant any more culpable than a chronological child
with a high IQ. It is not an inability to understand that one is breaking the law that
factors against death sentences for children and the mentally retarded—even a
small child realizes when she is breaking the rules. It is the child’s inability to
understand why the rules exist, to appreciate the consequences of breaking them
for herself and for society, and to consistently make judgments based on the
foregoing which factor against sentencing children to death. As with children and
the mentally retarded, mental age is not the result of a failure to abide by an
expected standard, but an incapacity to evaluate and comprehend it.4 The mere fact
4
Furthermore, the tests for determining mental retardation and mental age seem to
measure the same skills that would contribute to one’s culpability. The American Psychiatric
Association criteria for mental retardation are:
A. Significantly subaverage intellectual functioning: an IQ approximately 70 or
below on an individually administered IQ test.
B. Concurrent deficits or impairments in present adaptive functioning in at least
two of the following areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.
C. The onset is before age 18 years.
See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41
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of a defendant’s chronological age should not qualify a defendant for death where
the measures of capacity render him lacking in culpability. Although it may not be
directly before us, at some juncture this issue must be addressed.
(4th ed. text revision 2000).
Similarly, mental age can be measured with increasing accuracy based on some of the
same measures:
As the Supreme Court indicated in its discussion of mental retardation in Atkins,
currently clinicians rely not only on intelligence scores derived from standardized
tests, but also on the level of adaptive skills in communication, self-care and
living skills, social skills, etc. Standard intelligence tests can be supplemented by
other tests which correlate with IQ measures, but are less verbal-oriented, such as
the Weschlser Memory Scale--Revised (WMS-R) or the Ravens Matrices Test.
Clinical interviewing and background history can be used to help 'triangulate' an
accurate mental age along with pure cognitive assessments. Thus, the imprecision
due to failure to measure other indicia of maturity such as experience, judgment,
and empathy, can be readily addressed by current diagnostic methods.
Fife, supra, at 271 (citations and footnotes omitted).
69