John Ruthell Henry v. State Of Florida
Annotate this Case
Download PDF
Supreme Court of Florida
____________
No. SC04-153
____________
JOHN RUTHELL HENRY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[October 12, 2006]
REVISED OPINION
PER CURIAM.
John Ruthell Henry, a prisoner under sentence of death for the murder of his
five-year-old stepson, Eugene Christian (“Eugene”), appeals the denial of his
motion for postconviction relief filed pursuant to Florida Rules of Criminal
Procedure 3.850 and 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla.
Const. Applying the two-prong test from Strickland v. Washington, 466 U.S. 668,
687-96 (1984), we determine that Henry has failed to establish either that his
counsel’s performance was deficient or that the deficient performance prejudiced
the defense. In doing so, we recognize that defense counsel’s strategy entailed
significant risk to the defendant and should be employed with caution and only
after careful analysis. Nevertheless, we cannot find that this strategy fell below the
“wide range of professionally competent assistance” when evaluated from
counsel’s perspective at the time defense counsel suggested and Henry agreed to
this strategy. See id. at 689-90. Furthermore, Henry has not shown that “there is a
reasonable probability that, but for counsel’s [allegedly] unprofessional errors, the
result of the proceeding would have been different.” Id. at 694; see also Hodges v.
State, 885 So. 2d 338, 345-46 (Fla. 2004).
Statement of the Facts and the Case
Eugene’s death originated from a dispute that occurred on December 22,
1985, in Pasco County, between John Ruthhell Henry (“Henry”) and his estranged
wife, Suzanne Henry (“Suzanne”). It ended when Henry, by his own admission,
“freaked out,” stabbed Suzanne thirteen times in the neck, and covered her body
with a rug. According to Henry, he then picked up her son, Eugene, who was
watching television in another room, and drove the child to Plant City in
Hillsborough County. The two stopped a number of times to purchase beer and
cocaine for Henry and a snack for the child. Henry smoked some of the cocaine as
he drove. On the way back to Pasco County, Henry thought he saw flashing lights
in the background. He pulled over into an isolated area where the car got stuck in
the mud. Henry and Eugene walked a short distance. Henry stopped to smoke
more cocaine, took Eugene on his knee, and stabbed the boy to death.
-2-
Two days later, Henry led the police to Eugene’s body. The police had
arrested Henry in connection with Suzanne’s murder. After reading Henry his
Miranda 1 rights, Detective Fay Wilber questioned Henry about Eugene’s
whereabouts. At one point in the interview, Detective Wilber stood up and said
that he was going to leave and find the boy without Henry’s help. After this,
Henry confessed. He told Detective Wilber that Eugene was in Plant City, that the
boy was not alive, and that he would lead the police to the crime scene. At the
crime scene, the police discovered the five-year-old’s body with five stab wounds
in the neck. Henry recounted the details of what happened on December 22 to the
police and confessed to murdering both Suzanne and Eugene. 2
1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. Henry was tried separately for Suzanne’s and Eugene’s deaths, in part
because the deaths occurred in different counties. Henry’s first trial for Suzanne’s
murder occurred in Pasco County shortly after his first trial for Eugene’s murder.
Henry was convicted and, after a unanimous jury recommendation, received a
death sentence for Suzanne’s murder. This Court reversed that conviction and
sentence on appeal. Henry v. State, 574 So. 2d 73, 74-76 (Fla. 1991). It found that
the cold, calculated, and premeditated (CCP) aggravator was not supported by the
evidence, and the lower court erred in admitting evidence of Eugene’s murder at
the trial for Suzanne’s murder. Id. The second trial for Suzanne’s death took place
on October 7, 1991. Henry was again found guilty and, after another unanimous
jury recommendation, was sentenced to death. This Court affirmed that judgment
and sentence in Henry v. State, 649 So. 2d 1366 (Fla. 1994), and affirmed the
denial of a motion for postconviction relief. Henry v. State, 862 So. 2d 679 (Fla.
2003).
-3-
On November 15, 1987, Henry was sentenced to death in Hillsborough
County for killing Eugene, 3 but this Court reversed the conviction on direct appeal
and required that Henry be given a new trial. Henry v. State, 574 So. 2d 66, 71-73
(Fla. 1991). 4 In August 1992, he received this new trial and was again convicted. 5
The jury recommended death by a vote of eleven to one. The trial judge agreed
that death was the appropriate penalty. Finding that the two aggravating factors
outweighed the two statutory and six nonstatutory mitigating factors, the court
3. The jury recommended the death sentence by a vote of ten to two.
4. In Henry’s first direct appeal of his conviction and sentence for Eugene’s
murder, Henry raised six allegations that this Court addressed. The first allegation
claimed that the evidence did not support the finding that Henry had kidnapped
Eugene, and the Court unanimously rejected this argument. Five allegations
involved alleged trial court error in (1) failing to suppress the confession given
after Henry told one detective he was “saying nothing” to him; (2) striking the
insanity defense; (3) admitting evidence regarding Suzanne’s murder at Henry’s
trial for Eugene’s murder; (4) allowing the prosecution to impeach the defense
mental health expert by asking how much of his practice was devoted to those
convicted of first-degree murder; and (5) declining the jury’s request to rehear the
mental health expert testimony. Henry v. State, 574 So. 2d 66, 69-71 (Fla. 1991).
The Court unanimously rejected Henry’s third, fourth, and fifth allegations but
split four to three, with a majority finding error sufficient to warrant a new trial on
the first and second allegations.
5. In this second trial, Henry relied on the defense of voluntary intoxication.
He presented three lay witnesses (including himself) and three expert witnesses
who testified that he lacked the specific intent to commit first-degree murder
because he was under the influence of cocaine at the time of the killing.
-4-
sentenced Henry to death. 6 This Court affirmed the judgment and sentence on
direct appeal. Henry v. State, 649 So. 2d 1361 (Fla. 1994). 7
6. The aggravating factors were: (1) previous conviction for another capital
felony and (2) that the murder was committed during the course of a kidnapping.
Henry, 649 So. 2d at 1363. These aggravating factors outweighed the mitigating
factors, which were assigned “some weight” by the trial court. Id. at 1363-64. The
statutory mitigators in this case were both mental health mitigators (i.e., that the
murder was committed under the influence of extreme mental or emotional
disturbance and impaired capacity to appreciate the criminality of conduct or
conform to the requirements of the law). The six nonstatutory mitigators
recognized that Henry (1) pled guilty and turned himself in for the murder of his
first wife, Patricia Roddy; (2) cooperated with law enforcement officials; (3)
exhibited good conduct in jail; (4) treated Eugene well when the child was alive
and was remorseful for this crime; (5) had a history of drug and alcohol abuse; and
(6) suffered brain damage from a childhood fall. Id. at 1364 n.6.
7. Henry claimed nine grounds for relief in his first direct appeal following
his second conviction for Eugene’s murder. Three of these claims alleged that the
trial court erred in denying motions to (1) remove the state attorney and appoint a
special prosecutor; (2) suppress the admission and statements made during
custodial interrogation because of a remark made by Pasco County detective Fay
Wilber; and (3) suppress Henry’s confession, which was given after he told another
detective he would not talk. Four of these claims alleged that the trial court erred
in ways unrelated to motions filed by the defense, such as (4) allowing mention of
Henry’s conviction for Suzanne’s murder and admitting evidence of her murder at
the trial for Eugene’s murder; (5) failing to read back the testimony of Dr. Berland,
a defense expert witness; (6) failing to find the prosecutor’s impeachment of Dr.
Berland improper; and (7) giving the standard jury instruction on reasonable doubt.
Finally, Henry’s last two claims were general allegations that (8) Florida’s
aggravating factor of murder in the course of a felony is unconstitutional, and (9)
the death penalty was disproportionate in this case. The Court rejected each of
these arguments. Henry, 649 So. 2d at 1364-65.
The only claim relevant to this postconviction appeal is the fourth claim.
Henry asserted on direct appeal that the trial court erred in admitting evidence of
Suzanne’s murder at the trial for Eugene’s murder. This Court unanimously
-5-
On September 12, 2002, Henry filed a “Complete Post Conviction Motion to
Vacate Judgment and Death Sentence” pursuant to Florida Rule of Criminal
Procedure 3.850. Following a Huff 8 hearing, the trial court ordered an evidentiary
hearing on three of Henry’s ineffective assistance of counsel claims. The
evidentiary hearing occurred on October 17, 2003, and on December 17, 2003, the
trial court entered an order denying relief. The trial court found that Henry failed
to meet either prong of the Strickland test.
The first claim asserted that defense counsel failed to adequately investigate
the defense of insanity. Henry voluntarily waived this defense at the evidentiary
hearing.
rejected this claim, finding evidence of Suzanne’s murder admissible because it
was “inseparable” from the case at hand. Id. at 1365. This Court explained:
[T]he State was faced with proving that Henry premeditated the
murder of [Eugene] and that [Eugene] was kidnapped rather than
taken unlawfully. Henry, 574 So. 2d at 70. Given this burden of
proof, evidence from the Suzanne Henry murder was necessarily
admitted to adequately describe the events leading up to [Eugene’s]
death. Further, the facts of Suzanne Henry’s murder were so
inextricably intertwined with [Eugene’s] murder that to separate them
would have resulted in disjointed testimony that would have led to
confusion. Griffin v. State, 639 So. 2d 966 (Fla. 1994); Erickson v.
State, 565 So. 2d 328, 333 (Fla. 4th DCA 1990), review denied, 576
So. 2d 286 (Fla. 1991).
Id. at 1365.
8. Huff v. State, 622 So. 2d 982 (Fla. 1993).
-6-
The second claim was that defense counsel failed to adequately investigate
the defense of voluntary intoxication. The trial court recognized that Henry’s
counsel presented three experts and two lay witnesses at trial who testified that
Henry lacked the specific intent to commit this crime. Moreover, at the evidentiary
hearing, Henry provided no other witnesses that could have testified. As
determined by the trial court, “just because Dr. Mosman [i.e., the expert whom
Henry’s appellate counsel asked to testify at the evidentiary hearing] or any other
individual, with the benefit of hindsight would have proceeded with the experts
differently, does not entitle Defendant to post conviction relief.” Henry did not
contest the trial court’s finding in his appeal to this Court.
Henry’s third claim was that his counsel was ineffective for leading him to
testify that he (1) had earlier been convicted of stabbing Patricia Roddy;
(2) had served only half his sentence for this crime; and (3) had been given the
death penalty for Suzanne’s murder. In denying this claim, the trial court found
that defense counsel “made a tactical, strategic decision, with the joint consent of
both co-counsel, Mr. Wells, and the Defendant to disclose the Roddy murder to the
jury during the guilt phase.” It also found that the decision to disclose Henry’s
sentence for the Roddy murder and his death sentence for Suzanne’s murder were
-7-
“tactical, strategic decisions.” Moreover, it recognized that the decisions were
made by the lead defense counsel, who had significant trial court experience. 9
At the evidentiary hearing, Henry’s lead defense counsel, William Fuente,
testified to the dire situation facing defense counsel as they approached Henry’s
second trial for Eugene’s murder and the fourth trial for the events surrounding
Eugene’s death:
[F]rom our perspective it was a very difficult case. First of all,
[Henry] had been convicted once before. Secondly . . . the underlying
facts were that he had confessed to the authorities to the offense, that
so that was difficult. . . . And beyond that . . . there was a lot of other
evidence beyond this confession that implicated him in the offense.
Defense counsel also testified that its trial strategy was to disclose everything:
Well, the decision to proceed the way we did, and this is let Mr.
Henry testify and acknowledging everything, was arrived at . . . within
a couple of months of the trial commencing. And my recollection of
this we had a––we had a meeting, Mr. Henry, Mr. Wells [defense cocounsel] and myself . . . just throwing the idea around. At the time,
the thinking was that [Henry] had already been convicted once of his
offense . . . and then again in [Pasco] County of a homicide that
occurred previously, and based upon our assessment of the evidence
9. The trial court found that Henry’s lead counsel, William Fuente, had
“extensive criminal experience both prosecuting and defending capital cases prior
to representing [Henry].” Fuente testified that he spent five years in the state
attorney’s office where he handled many murder prosecutions and was eventually
appointed division chief and special prosecutor. In 1980, twelve years before he
defended Henry, he went into private practice as a defense attorney. His practice
focused on state trial and appellate work, although he did some federal trial and
appellate practice work as well. He testified that he had handled “between 10 and
15 capital cases” before representing Henry, and “probably 5 of these went to trial
as death penalty cases.” Two or three of the death penalty cases resulted in a
sentence of death.
-8-
the state had against him, it was highly unlikely we were going to
achieve an acquittal. So our best hope––our thought was our best
hope was to try to achieve, number 1, a conviction on a lesser on some
defense where we could get into the––his mental history, and the only
way that could happen was we would agree with an insanity or a
voluntary intoxication defense, and we chose the latter. We excluded
considering the insanity defense because of the, really the flipflopping of one or two of the doctors.
....
And the other concern was that after discussing with Mr. Henry
my having been in this situation before and Mr. Wells having been in
this situation whereby if we approached this case on a pure not guilty,
then denying the offense, if you will, it would have likely culminated
in a situation where that jury would not have known, likely would not
have known about . . . the Pasco County murder, which happened
very shortly before and the Roddy murder which happened some ten
years before. So we would have been faced with a client whose jury
just found him guilty and then at penalty phase for the first time that
jury would have known about two other homicides. We were almost
certain that would result in a recommendation of death. So our
strategy, if you will, was to lay it all out on the table so that the jury
would not be surprised, they would know everything there was to
know and again, that was a calculated decision on all our parts.
(Emphasis added.) Moreover, defense counsel testified that this decision was
specifically discussed with Henry in advance and that Henry consented to it:
I [Henry’s trial counsel] have a photographic recall of one brief part of
that interview and I remember myself saying . . . to the other two, Mr.
Henry and Mr. Wells, what do you folks think about us letting
everything hang out . . . and I recall we had further discussions and we
certainly contemplated pros and cons . . . and I remember reaching
that consensus.
Analysis
The issue on appeal is whether Henry’s counsel was ineffective for leading
Henry to testify on direct examination during the guilt phase that (1) in 1976, he
-9-
had pled no contest to second-degree murder in the death of his first wife, Patricia
Roddy, and had served seven and a half years of his fifteen-year sentence for that
murder; (2) Patricia Roddy, like Eugene, was stabbed to death; and (3) Henry had
received the death sentence for Suzanne’s murder.
To prevail on his claim of ineffective assistance of counsel, Henry must
show both deficient performance and prejudice arising from this deficiency.
Strickland, 466 U.S. at 687. We apply a mixed standard of review, deferring to the
trial court for findings of fact and reviewing the trial court’s legal conclusions de
novo. Cave v. State, 899 So. 2d 1042, 1052 (Fla. 2005). We find that Henry has
failed to establish either prong. Defense counsel’s decision to elicit the details of
Henry’s prior conviction and death sentence during the guilt phase certainly
entailed significant risk for the defendant. However, in the final analysis, we
cannot find that this decision was “outside the wide range of professionally
competent assistance” given the totality of the circumstances facing defense
counsel as they prepared for this case. See Strickland, 466 U.S. at 690.
Furthermore, Henry has not established that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the [trial] would have been
different.” Id. at 694. We explain this conclusion by elaborating first upon the
standard for ineffective assistance of counsel in Strickland and then applying this
standard to the particular facts of this case.
- 10 -
Under the Strickland test for ineffective assistance of counsel, a defendant
must first establish that defense counsel’s performance was deficient, or that
defense counsel’s performance fell beyond an “objective standard of
reasonableness,” such that counsel could not be said to be functioning as the
“counsel” guaranteed by the Sixth Amendment. Id. at 687-88. This showing
requires the defendant to overcome a strong presumption that the counsel’s action
was not deficient. Mansfield v. State, 911 So. 2d 1160, 1171 (Fla. 2005) (citing
Strickland, 466 U.S. at 687). As the United States Supreme Court instructed in
Strickland:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel
was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-34 (1982).
A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from the counsel’s perspective at the time. Because of the
difficulties inherent in making evaluations, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.” See
Michel v. Louisiana, supra, 350 U.S. at 101.
466 U.S. at 689.
In light of this measured deference, evidence that counsel’s conduct was part
of a deliberate, tactical strategy that the defendant understood and approved almost
- 11 -
always precludes the establishment of this prong. Downs v. State, 453 So. 2d
1102, 1108 (Fla. 1984) (characterizing defense counsel’s strategic or tactical
decision as “virtually unchallengeable” in a claim of ineffective assistance of
counsel). This is especially true if the defense counsel considered and rejected
alternative courses of action. Lawrence v. State, 831 So. 2d 121, 129 (Fla. 2002)
(“This Court has held that defense counsel’s strategic choices do not constitute
deficient conduct if alternative courses of action have been considered and
rejected.”); see also Patton v. State, 878 So. 2d 368, 373 (Fla. 2004) (rejecting
ineffective assistance of counsel claim raised in 3.850 motion, in part because trial
counsel “thoroughly considered her options [and] weighed the pros and cons [of
the action]”).
If a defendant establishes that his counsel’s performance was deficient, he
must establish the second prong as well, which requires him to show that defense
counsel’s actions prejudiced him. The defendant must establish that defense
counsel’s deficient performance was so serious that the defendant was deprived of
a fair trial. Strickland, 466 U.S. at 687. To establish deprivation of a fair trial, the
defendant must show that there is a reasonable probability that, “absent the errors,
the factfinder would have a reasonable doubt respecting guilt.” Robinson v. State,
770 So. 2d 1167, 1172 (Fla. 2000) (quoting Strickland, 466 U.S. at 695). A
reasonable probability is a “probability sufficient to undermine confidence in the
- 12 -
outcome.” Strickland, 466 U.S. at 694. It does not require the defendant to show
that “counsel’s deficient conduct more likely than not altered the outcome,” but it
does require the defendant to show that in light of all the evidence surrounding his
conviction, defense counsel’s conduct renders the results of the proceeding
unreliable. Gaskin v. State, 822 So. 2d 1243, 1247 n.3 (Fla. 2002) (quoting
Strickland, 466 U.S. at 693); see also Strickland, 466 U.S. at 694.
I. Deficient Performance
Applying this two-prong test from Strickland, we find that Henry has failed
to establish that his counsel’s performance was deficient in making the decision—
well before trial and with Henry’s informed consent—to question Henry about
Patricia Roddy’s murder, the sentence he served for this crime, and the death
sentence he received for Suzanne’s murder. While this testimony would not
otherwise have been admissible if it had not been raised by the defendant on direct
examination, 10 we recognize that the facts of this case would lead reasonably
prudent defense counsel to believe there was a strong likelihood Henry would be
convicted in the guilt phase and, therefore, that counsel would need to consider the
impact of the guilt phase on the penalty phase. See Florida v. Nixon, 543 U.S.
175, 191 (2004) (recognizing that the gravity of the potential sentence in a death
10. See §§ 90.404(2)(a), 90.610, Fla. Stat. (2004) (stating that evidence of
prior crimes is not admissible to establish propensity, but may be admissible to
impeach a witness).
- 13 -
penalty trial and the two-tier proceeding “vitally affects counsel’s strategic
calculus” when approaching a death penalty case). Henry had confessed to
brutally stabbing to death his five-year-old stepson hours after he killed the child’s
mother in a similar manner. Three prior juries had recommended Henry be
sentenced to death for these crimes. Confronted with this reality, defense counsel
was obligated to prepare a strategy that considered not only the guilt phase, but
also the penalty phase. Given these circumstances, we do not find the decision to
question Henry about his past criminal record to be outside the wide range of
professionally competent assistance. See Strickland, 466 U.S. at 690 (defining
“deficient performance” as “outside the wide range of professional competence”).
The decision to question Henry about these otherwise inadmissible facts was
jointly reached. It was part of a deliberate strategy to avoid a death sentence,
suggested by highly experienced criminal defense attorneys and agreed to by
Henry. Fuente testified that “a couple months before trial,” he, Henry, and cocounsel Wells met to discuss possible trial strategies. The decision to reveal
Henry’s past criminal history began as an idea that they were “just throwing . . .
around.” However, after “further discussions” and “contemplat[ing] the pros and
cons,” they mutually decided it was the best available option.
Fuente’s testimony portrays the extremely difficult situation defense counsel
faced in preparing for Henry’s second trial for Eugene’s murder. Not only had
- 14 -
Henry been convicted of first-degree murder in each prior trial involving the deaths
of Eugene and Suzanne, a jury had recommended the death sentence in each of
these trials. This recommendation was unanimous in both trials for Suzanne’s
murder, and affirmed by a strong vote of ten to two in the prior trial for Eugene’s
murder. Moreover, counsel recognized that underlying each of these
recommendations was a very strong case for the State in the guilt phase. As
Fuente testified, “the facts as I remember them, the underlying facts were that
[Henry] had confessed to the authorities. . . . And beyond that . . . there was a lot of
other evidence . . . that implicated [Henry] in the offense.” In light of this, Fuente
expressed a fear that withholding information regarding Henry’s prior background
would have likely culminated into a situation where the jury would
not have known, likely would not have known about the . . . [Pasco]
County murder, which happened very shortly before and the Roddy
murder which happened some ten years before. So we would have
been faced with a client whose jury just found him guilty and then at
penalty phase for the first time that jury would have known about the
two other homicides. We were almost certain that would result in a
recommendation of death.
(Emphasis added.) Therefore, the defense strategy was “to lay it all out on the
table so that the jury would not be surprised.” In Fuente’s words,
The potential benefit [of telling the jury about the Roddy homicide in
the guilt phase], as [defense counsel] perceived it, was simply to let
the jury know everything there was to know upfront, be completely
candid, and if they returned a verdict of first degree murder, there
would be no surprise, nothing more for them to consider, nothing
more aggravating if you will [in the penalty phase].
- 15 -
In reaching this strategic decision, defense counsel and Henry considered
other alternatives. Fuente testified that both Henry and co-counsel Wells agreed to
this unusual strategy after several meetings in which they considered its pros and
cons. In doing so, they considered the available defenses, including insanity. An
insanity defense was abandoned because the experts “flip-flopp[ed]” on whether
the defendant was insane, making it unlikely the jury would render a verdict of not
guilty based on insanity. Defense counsel believed Henry’s “best hope” was to
present a voluntary intoxication defense and argue for a lesser included offense;
but, given the strong evidence against Henry and that the prior jury had rejected the
evidence in support of this defense, counsel had to anticipate and be prepared for a
penalty phase.
We have repeatedly rejected claims of ineffective assistance of counsel
when the allegedly improper conduct was the result of a deliberate trial strategy.
See Lawrence, 831 So. 2d at 129 (citing Shere v. State, 742 So. 2d 215, 220 (Fla.
1999), for the proposition that “[t]his Court has held that defense counsel’s
strategic choices do not constitute deficient conduct if alternative courses of action
have been considered and rejected”); see also Patton, 878 So. 2d at 373 (citing
Shere for the same proposition). Indeed, the facts of this case closely parallel
Shere.
- 16 -
In Shere, this Court rejected an ineffectiveness claim based on defense
counsel’s strategic decision to offer evidence of a codefendant’s admission during
the guilt phase. 742 So. 2d at 219-20. The Court found that “[a]t the conclusion of
the State’s case, the defendant was in a desperate situation,” because “[t]he State’s
case-in-chief did not leave any doubt that the defendant played a major role in the
murder.” Id. (quoting trial court’s order). This Court also relied on the fact that
“defendant was represented by a highly competent and ethical trial attorney” who
had made a “tactical decision after considering all of the evidence against his client
and after considering all other alternatives.” Id. (quoting trial court’s order).
The same is true in Henry’s case. Fuente had more than fifteen years of
experience litigating criminal cases before he represented Henry. He had tried
numerous capital murder cases, five of which involved the death penalty. Cf.
Atwater v. State, 788 So. 2d 223, 230 (Fla. 2001) (relying, in part, on defense
counsel’s seventeen years of experience in criminal litigation and the fact that
counsel had handled five or six capital cases to find that a preplanned strategy to
concede defendant’s guilt to a lesser crime was not “reviewable under Strickland”).
When it became time to present Henry’s defense, Fuente knew he would be facing
a situation at least as desperate as the defendant’s in Shere. At the time he rose to
present Henry’s case, the State would have just presented overwhelming evidence
that Henry had brutally murdered his five-year-old stepson hours after he had
- 17 -
brutally murdered the boy’s mother. This evidence would have included the
details of Suzanne’s murder, as this Court had previously determined that the facts
were “inextricably intertwined with [Eugene’s] murder” and, therefore, admissible.
Henry v. State, 649 So. 2d at 1364-65. The State’s case would also have included
Henry’s detailed confession to the police and the fact that Henry had led the police
to the boy’s body. As noted earlier, a prior jury had convicted Henry of firstdegree murder based on these facts and recommended a sentence of death by a
vote of ten to two. It is not unreasonable for defense counsel, when faced with
these circumstances, to believe that extreme measures might be necessary in order
to maintain credibility with the jury throughout both phases of the trial.
Both this Court and the United States Supreme Court have recognized the
appropriateness of the end Fuente sought to achieve. In Atwater, this Court
recognized the importance of establishing credibility with the jury. 788 So. 2d at
229-30. The Court found that defense counsel was not deficient for conceding
defendant’s guilt of second-degree murder in its closing argument and supporting
this concession by showing photographs of the crime scene to the jury. Id. “In
light of the evidence against Atwater, defense counsel properly attempted to
maintain credibility with the jury by being candid as to the weight of the
evidence.” Id. at 231.
- 18 -
Similarly, as previously mentioned, the United States Supreme Court has
recently recognized the importance of preparing for the penalty phase in death
penalty cases. “[T]he gravity of the potential sentence in a capital trial and the
proceeding’s two-phase structure vitally affect counsel’s strategic calculus” in
regard to deciding whether to concede guilt in the guilt phase. Florida v. Nixon,
543 U.S. 175, 190-91 (2004). In cases like Henry’s, where “the evidence is
overwhelming and the crime heinous,” id. at 191, “avoiding execution [may be] the
best and only realistic result possible.” Id. at 562 (alteration in original) (emphasis
added) (quoting Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases, § 10.9.1 cmt. (rev. ed. 2003)). Therefore, “in a
capital case, counsel must consider in conjunction both the guilt and penalty phases
in determining how best to proceed.” Id. at 192 (emphasis added).
We recognize that these cases are distinguishable from Henry’s in that
Henry’s counsel did not merely concede guilt to a lesser offense but led his client
to testify to highly incriminating evidence that would otherwise have been
inadmissible in the guilt phase. This distinction, however, does not justify a
finding that counsel’s performance was deficient. When determining ineffective
assistance claims, our duty is “not to grade counsel’s performance,” Strickland,
466 U.S. at 697, or to use the Sixth Amendment to “improve the quality of legal
representation.” Id. at 689. In hindsight, we might seriously question counsel’s
- 19 -
decision to introduce this evidence during the guilt phase. But such a hindsight
evaluation does not answer the question of whether counsel was deficient. When
determining whether counsel’s performance is deficient, our duty is to make every
effort “to eliminate the distorting effects of hindsight . . . [and] evaluate the
conduct from counsel’s perspective at the time [counsel prepared for trial].” Id. at
689. Viewed from this perspective, we find counsel’s performance was not
deficient. Henry’s highly experienced trial counsel reasonably believed Henry
almost certainly faced a penalty phase proceeding and that the only chance of
avoiding execution was complete candor with the jury. They believed the only
way to achieve this candor was to lead Henry to testify to these otherwise
inadmissible facts during the guilt phase. Henry agreed to this strategy. Given the
unique circumstances of this case, we find Henry has failed to overcome the strong
presumption that counsel’s performance was not deficient. See Strickland, 466
U.S. at 688-90 (recognizing that defendants bringing an ineffectiveness claim must
overcome a strong presumption and that courts must consider counsel’s action in
light of all the evidence in the case because “[n]o particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the . . . range of legitimate
decisions regarding how best to represent a criminal defendant”).
II. Prejudice
- 20 -
In most cases, our determination that Henry has failed to meet the first prong
of the Strickland test would end any further analysis. See Strickland, 466 U.S. at
697 (authorizing courts to dispose of ineffectiveness claims after addressing only
one prong of the analysis). Nonetheless, given the uniqueness of this case, we will
address the second prong as well.
Even if we agreed with Henry that defense counsel’s line of questioning
constituted deficient performance, this deficiency would not warrant reversal
because Henry has not established that counsel’s actions prejudiced him. To
reiterate, Strickland requires defendants to show “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” 466 U.S. at 694. Such a “reasonable probability” is a
“probability sufficient to undermine confidence in the outcome.” Id. This second
prong does not require proof that “counsel’s deficient conduct more likely than not
altered the outcome of the case.” Gaskin v. State, 822 So. 2d 1243, 1247 n.3 (Fla.
2002) (quoting Strickland, 466 U.S. at 693). Instead, it requires a showing that, in
light of all the evidence surrounding his conviction, the conduct renders the results
of the proceeding unreliable. Id. at 1247; see also Strickland, 466 U.S. at 694.
Viewing this case in its entirety, we find that Henry has not satisfied this
burden. As explained above, defense counsel were confronted with an extremely
strong case against their client. They had to calculate the impact of the guilt phase
- 21 -
testimony upon a likely penalty phase. While Henry asserts that his defense of
voluntary intoxication would have resulted in a conviction of a lesser included
offense, thereby avoiding a penalty phase, he has failed to establish this claim. He
has not established a reasonable probability that the result of the guilt phase would
have been different. In other words, he has not proven this claim with a probability
sufficient to undermine confidence in the outcome. First, voluntary intoxication is
not a particularly strong defense to such crimes, and the evidence in support of this
defense was weak. The only direct evidence establishing that Henry was
intoxicated at the time he killed Eugene was Henry’s own testimony. The two
other lay witnesses presented at trial could only testify that Henry was intoxicated
hours earlier––even before he killed Suzanne. And for the murder of Suzanne,
Henry again had received a death sentence in the second trial for her murder, an act
“inextricably intertwined” with the case at hand. Second, the trial court found that
defense counsel adequately presented this defense through the testimony of two
expert witnesses and three lay witnesses, including Henry himself. Yet, the jury
still rejected this defense. In summary, Henry has still failed to establish a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
Conclusion
- 22 -
We hold that Henry has failed to establish a claim for ineffective assistance
of counsel. We affirm the trial court’s denial of Henry’s motion to vacate
judgment and death sentence.
It is so ordered.
WELLS, CANTERO, and BELL, JJ., concur.
WELLS, J., specially concurs with an opinion, in which CANTERO and BELL,
JJ., concur.
PARIENTE, J., concurs in result only with an opinion.
LEWIS, C.J., concurs in result only.
ANSTEAD, J., dissents with an opinion.
QUINCE, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
WELLS, J., concurring specially.
I write only to respond to the dissenting opinion.
I find unsupported in the trial court’s order the statement in the dissent that
the trial court characterized defense counsel’s conduct as “bad judgment” in
several places in its order. What the trial judge actually said was: “The court
further finds that even if this Court finds that Judge Fuente’s tactical decision
exhibited bad judgment, Defendant is not entitled to post conviction relief.” State
v. Henry, No. 85-14273-D (Fla. 13th Cir. order filed Dec. 23, 2003), order at 8.
- 23 -
I cannot locate and the dissent has not pointed to any finding by the trial
judge that trial counsel exercised “bad judgment.” Rather, what the record clearly
shows and the trial judge’s order does repeatedly state, as the majority opinion sets
forth, is that a very experienced trial counsel made a studied tactical decision.
Though the dissent states in footnote 21 that Justice Anstead “has no qualms
in conceding that it may sometimes be in a defendant’s best interest to admit
shortcomings or even concede guilt in order to focus on the penalty phase of a
capital trial” and cites to Florida v. Nixon, 543 U.S. 175 (2004), it appears to me
that the dissent is written from the same perspective which led to this Court’s error
in Nixon v. Singletary, 857 So. 2d 172 (Fla. 2003); see id. at 179-83, 183-89
(Lewis, J., concurring in result only; Wells, J., dissenting and joined by Shaw,
Senior Justice), and to the Supreme Court’s writing: “As Florida Supreme Court
Justice Lewis observed, that court’s majority misunderstood Cronic[ 11 ]and failed to
attend to the realities of defending against a capital charge. Nixon [v. State], 857
So. 2d [172,] at 180-183 (opinion concurring in result).” Florida v. Nixon, 543
U.S. at 189-90.
That perspective failed to give the appropriate deference to both trial counsel
and the trial judge by recognizing that candor about the defendant’s acts or history
11. United States v. Cronic, 466 U.S. 648 (1984).
- 24 -
could be a reasonable strategy in some capital cases. What the Supreme Court
further wrote in Nixon is applicable to this case:
Attorneys representing capital defendants face daunting challenges in
developing trial strategies, not least because the defendant’s guilt is
often clear. Prosecutors are more likely to seek the death penalty, and
to refuse to accept a plea to a life sentence, when the evidence is
overwhelming and the crime heinous. See Goodpaster, The Trial for
Life: Effective Assistance of Counsel in Death Penalty Cases, 58
N.Y.U.L. Rev. 299, 329 (1983). In such cases, “avoiding execution
[may be] the best and only realistic result possible.” ABA Guidelines
for the Appointment and Performance of Defense Counsel in Death
Penalty Cases §10.9.1, Commentary (rev. ed. 2003), reprinted in 31
Hofstra L. Rev. 913, 1040 (2003).
Counsel therefore may reasonably decide to focus on the trial’s
penalty phase, at which time counsel’s mission is to persuade the trier
that his client’s life should be spared. Unable to negotiate a guilty
plea in exchange for a life sentence, defense counsel must strive at the
guilt phase to avoid a counterproductive course. See Lyon, Defending
the Death Penalty Case: What Makes Death Different?, 42 Mercer L.
Rev. 695, 708 (1991) (“It is not good to put on a ‘he didn’t do it’
defense and a ‘he is sorry he did it’ mitigation. This just does not
work. The jury will give the death penalty to the client and, in
essence, the attorney.”); Sundby, The Capital Jury and Absolution:
The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83
Cornell L. Rev. 1557, 1589-1591 (1998) (interviews of jurors in
capital trials indicate that juries approach the sentencing phase
“cynically” where counsel’s sentencing-phase presentation is logically
inconsistent with the guilt-phase defense); id., at 1597 (in capital
cases, a “run-of-the-mill strategy of challenging the prosecution’s case
for failing to prove guilt beyond a reasonable doubt” can have dire
implications for the sentencing phase). In this light, counsel cannot be
deemed ineffective for attempting to impress the jury with his candor
and his unwillingness to engage in “a useless charade.” See Cronic,
466 U.S. at 656-657, n. 19. Renowned advocate Clarence Darrow, we
note, famously employed a similar strategy as counsel for the
youthful, cold-blooded killers Richard Loeb and Nathan Leopold.
Imploring the judge to spare the boys’ lives, Darrow declared: “I do
not know how much salvage there is in these two boys. . . . I will be
- 25 -
honest with this court as I have tried to be from the beginning. I know
that these boys are not fit to be at large.” Attorney for the Damned:
Clarence Darrow in the Courtroom 84 (A. Weinberg ed. 1989).
Florida v. Nixon, 543 U.S. at 191-92 (footnote omitted).
The plain reality of the present case is that experienced trial counsel
proceeded on the basis of a strategy which, from every indication in the record,
counsel, based upon considerable experience in capital cases, believed at the time
was a reasonable legal strategy in view of what strategies the facts made available
to attempt to avoid his client being executed. In both this case and the Nixon case,
counsel were representing clients who confessed to horrendous murders. Counsel
recognized that candor with the jury was absolutely necessary, not just in the
penalty phase of the proceedings but throughout the proceedings.
In the present case, there is no question that very experienced trial counsel
made a studied decision. Counsel obtained the consent of the client. In hindsight
in this case, as in Nixon, counsel’s studied strategy can be criticized since it did not
succeed. But success in this case, utilizing any strategy, was not probable. The
fact that the strategy did not succeed does not equate to the strategy being
unreasonable.
What the accepted test from Strickland v. Washington, 466 U.S. 668 (1984),
teaches is that we should not use hindsight, but rather, we must give deference to
counsel when counsel makes a studied decision in the heat of battle.
- 26 -
Unfortunately, because of the murder this defendant confessed to committing,
counsel had no good choices. I cannot find that counsel made a choice which no
reasonable counsel would have made. Nor did the trial judge who heard the live
testimony of counsel during the postconviction hearing make such a finding.
For these reasons, I concur in the majority’s decision and opinion.
CANTERO and BELL, JJ., concur.
PARIENTE, J., concurring in result only.
I agree with Justice Anstead that counsel did not operate as the counsel
guaranteed by the Sixth Amendment in eliciting testimony by the defendant about
the prior murders. However, I agree with the majority that there is no reasonable
probability, sufficient to undermine confidence in the outcome, that this deficient
performance resulted in a conviction of first-degree murder rather than seconddegree murder. As we noted in the direct appeal, evidence of the Suzanne Henry
murder was “inseparable crime evidence” properly admitted. Henry v. State, 649
So. 2d 1361, 1365 (Fla. 1994). Counsel’s conduct in exposing the facts
surrounding that murder and the prior second-degree murder does not undermine
confidence in the jurors’ rejection of the voluntary intoxication defense and verdict
of guilty of first-degree murder. Accordingly, I concur in affirmance of the denial
of postconviction relief.
- 27 -
ANSTEAD, J., dissenting.
This is an unusual and troubling case. In most of the cases we review on
claims of ineffectiveness of counsel the claim is predicated on an allegation that
defense counsel did not do enough, i.e., that counsel failed to do a proper
investigation of the case and the defendant’s background in order to provide a
judge and jury with credible reasons to spare the defendant’s life. 12 Today’s case
is the rare exception, where the claim is not that the lawyer did not do enough, but
rather that the lawyer, by his affirmative choice, actually acted contrary to his
client’s best interests, and took actions that increased the likelihood of, if they did
not ensure, his client’s conviction. I cannot concur in the majority’s determination
that Henry’s counsel acted effectively and competently in choosing to elicit
severely damaging evidence from his client that would have otherwise not been
admissible during the guilt phase of Henry’s trial.
Defense counsel voluntarily put his client on the stand and elicited from him
the extremely damaging facts that Henry had been convicted of second-degree
murder for stabbing his first wife, Patricia Roddy, to death and had served only
seven and a half years for that crime, and that he had already been convicted and
12. Perhaps the classic case in that category is the lawyer that has not
previously handled a death penalty case and has simply not properly educated
himself or herself about the unique and complex issues presented in death penalty
cases, combined with the heightened responsibilities of lawyers who accept
representation in this most serious of all categories of criminal cases.
- 28 -
sentenced to death for the murder of his second wife, Suzanne Henry. Further, and
as if this was not damaging enough, a shocked and surprised prosecutor sought and
obtained permission from the trial court to elicit in great detail on crossexamination all of the damaging circumstances surrounding the commission of
these other killings. By choosing to voluntarily provide Henry’s jury with this
damning evidence of Henry’s prior killings, defense counsel all but guaranteed his
client’s conviction in the instant case.
It is apparent that the decision to voluntarily put this damaging evidence
before a jury charged with evaluating Henry’s culpability for yet a third killing was
not within any range of competent professional conduct by a qualified defense
lawyer. As with the fundamental oath of physicians, surely defense counsel’s first
obligation to his client is to do no harm. That obligation was directly violated here,
and cannot be swept under the rug as a “tactical” call by counsel. Such “tactical
decisions” have no place in our system of bifurcated trials for capital crimes. If the
right to effective representation is to have any meaning at all, we cannot approve
such malfeasance by counsel.
RIGHT TO THE ASSISTANCE OF COMPETENT COUNSEL
“The Sixth Amendment to the United States Constitution guarantees a
defendant in a criminal case the right to assistance of counsel.” Howell v. State,
877 So. 2d 697, 702 (Fla. 2004). In Strickland v. Washington, 466 U.S. 668
- 29 -
(1984), the United States Supreme Court gave meaning to this right by holding that
counsel must actually provide effective representation to a criminal defendant
under prevailing professional norms. Id. at 688. In Strickland the United States
Supreme Court stressed that because we have an adversarial system of justice
which relies heavily on the vigorous advocacy and competence of counsel to
ensure a just result, capital defendants are entitled to genuine adversarial testing at
both the guilt and penalty phases of a capital trial. Strickland, 466 U.S. at 688.
Moreover, counsel’s actions, including “tactical” decisions, must be “reasonable
considering all the circumstances.” Id. Today’s decision, approving blatant
instances of ineffective representation in a death penalty case, constitutes a clear
retreat from the promise of Strickland.
As the majority notes, “[a]n ineffective assistance claim has two
components: A petitioner must show that counsel’s performance was deficient, and
that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521
(2003) (citing Strickland, 466 U.S. at 687). “Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.” Shere v.
State, 742 So. 2d 215, 219 (Fla. 1999) (quoting Strickland, 466 U.S. at 687). “The
two prongs are related, in that ‘[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
- 30 -
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.’ ” Howell, 877 So. 2d at 702 (quoting Rutherford v. State,
727 So. 2d 216, 219 (Fla. 1998)).
I. Deficient Performance
The trial court was obviously troubled by the conduct of defense counsel and
characterized this conduct several places in its order as “bad judgment.” 13
Nevertheless, the trial court did not make a specific ruling concerning the first
prong of the Strickland analysis, and instead ruled that it was not necessary to rule
on the first prong because Henry failed to prove prejudice under the second prong.
13. On page 8 of the trial court’s order denying postconviction relief the
judge states:
The Court further finds that even if this Court finds that Judge
Fuente’s tactical decision exhibited bad judgment, defendant is not
entitled to post conviction relief.
On page 20 of the order the judge states:
The Court further finds that even if this Court finds that Judge
Fuente’s tactical decision to disclose to the jury the fact that defendant
only served half of his fifteen-year prison sentence exhibited bad
judgment, defendant is not entitled to post conviction relief.
On pages 27-28 of the order the judge states:
The Court further finds that even if this Court finds that Judge
Fuente’s tactical decision to disclose to the jury the fact that defendant
had already received a death sentence for the murder of Suzanne
Henry exhibited bad judgment, defendant is not entitled to post
conviction relief.
- 31 -
The majority ignores these trial court references to “bad judgment” and instead
substitutes its own factual analysis to conclude that counsel’s conduct was
reasonable and acceptable under prevailing professional norms. However, neither
the factual record nor the law offers support for the majority’s analysis and
conclusion.
A. Henry’s Voluntary Intoxication Defense
Initially, based upon counsel’s investigation of the underlying facts of the
case, counsel developed a defense strategy premised on voluntary intoxication after
considering and rejecting a defense of insanity. No one challenges the efficacy of
counsel’s decision to adopt this defense. Voluntary intoxication was a recognized
defense at the time of Henry’s trial. Chestnut v. State, 538 So. 2d 820, 822 (Fla.
1989) (noting “the long-standing rule in Florida that evidence of voluntary
intoxication is admissible in cases involving specific intent”); Gurganus v. State,
451 So. 2d 817, 822-23 (Fla. 1984) (“When specific intent is an element of the
crime charged, evidence of voluntary intoxication . . . is relevant.”) (citing Cirack
v. State, 201 So. 2d 706 (Fla. 1967); Garner v. State, 9 So. 835 (Fla. 1891)).
Further, the underlying circumstances of the crime provided a substantial
factual predicate for this defense. It appears clear from the record that several fact
witnesses and three qualified doctors provided the jury with a strong case for the
voluntary intoxication defense that was at least sufficient to make the question of
- 32 -
whether Henry would have been convicted of first- or second-degree murder a
close one. 14 All three of these medical experts provided detailed testimony and
strong opinions that Henry was so intoxicated by the effects of cocaine that he was
incapable of forming the specific intent required for a conviction of first-degree
murder. 15 The State presented only one expert to testify that he did not agree with
14. It is also surprising that defense counsel had Henry take the stand to
reveal his past murder convictions before any of the doctors who supported his
voluntary intoxication defense took the stand. Any reasonable juror would have
been very skeptical of any opinions the doctors had after Henry had just taken the
stand to testify in detail as to his other homicides, including the stabbing death of
his first wife where he was not intoxicated.
15. Dr. Daniel Sprehe testified, “My opinion, at least with reasonable
medical probability, is that he did have an impairment of his ability to form
specific intent because of his use of cocaine.” Regarding Henry’s intent to actually
kill Eugene Christian when he was stabbing him, Dr. Sprehe stated, “Well, he
knew that eventually if he kept doing this, it would produce death, yes. But he,
when he was stabbing him, he was just stabbing him without considering what it
was going to produce.” When asked to contrast Henry’s specific intent with regard
to the death of Suzanne Henry versus the death of Eugene Christian, Dr. Sprehe
testified that Henry “knew what he was doing at all times” during the Suzanne
Henry murder, but not the Eugene Christian murder.
Dr. Walter Afield testified regarding Henry’s ability to form a specific intent
to kill Eugene Christian: “I think that his ability was seriously compromised, if he
even had the ability at all. I don’t think he had the ability. I think he was, I think
he was burned out on drugs. Craziness. And alcohol. I don’t think he could form
the intent at that time at all.” In addition, Dr. Robert Berland testified in
furtherance of his opinion concerning Henry’s inability to form specific intent. He
stated:
Well, it’s my opinion that while he could obviously think of the act
and apparently, at least, from his later report, thought about the act,
that his state of mind at the time he did it was so contaminated by his
mental illness, which was inflamed by is––he was in an acute
- 33 -
these three doctors’ conclusions regarding Henry’s ability to form specific intent.
Because of the persuasive evidence from the three doctors, Henry ordinarily would
have had at least a chance of being convicted of second-degree murder, a lesser
included homicide offense that does not require specific intent to kill.
Nevertheless, this chance for an alternative homicide conviction and the life
sentence that goes with it was obviously dashed by Henry’s counsel’s decision to
tell this jury about a litany of other horrendous things Henry had done before and
that another judge and jury had rejected his defenses and determined he should
receive the death penalty.
B.
The Voluntary Intoxication Defense’s Demise
It is difficult to envision a more prejudicial moment in a criminal trial than a
defendant personally telling the members of a jury the details of other horrific
crimes he has committed. Such facts are so inherently prejudicial that Florida’s
evidence code law generally bars the admission of such facts except in extremely
limited circumstances not involved here. Czubak v. State, 570 So. 2d 925, 928
psychotic state, and his report to me was that it was as a byproduct of
cocaine use, whether it was cocaine use or not he appears to be a very
unsophisticated person who gave a very accurate description of what
people go through who are in an acute psychotic state that particularly
may involve inflammatory effects of drugs, and that his actions were
substantially a byproduct of that mental illness. Therefore, it was my
opinion that he could not rationally and deliberatively, in a rational
and deliberative way, form the specific intent to commit this act.
- 34 -
(Fla. 1990) (citing § 90.404(2)(a), Fla. Stat. (1987); Castro v. State, 547 So. 2d
111, 114-15 (Fla. 1989); Williams v. State, 110 So. 2d 654 (Fla. 1959)). The
“inherent prejudice,” of course, underlying this rule barring evidence of other
crimes is the natural inclination a juror would have in concluding that “once a
robber, always a robber,” or as in Henry’s case, “once a killer, always a killer.”
Heuring v. State, 513 So. 2d 122, 124 (Fla. 1987) (“Similar fact evidence that the
defendant committed a collateral offense is inherently prejudicial. Introduction of
such evidence creates the risk that a conviction will be based on the defendant’s
bad character or propensity to commit crimes, rather than on proof that he
committed the charged offense.”) (citing Keen v. State, 504 So. 2d 396 (Fla. 1987);
Straight v. State, 397 So. 2d 903 (Fla. 1981)); see also Henrion v. State, 895 So. 2d
1213, 1216-17 (Fla. 2d DCA 2005) (reversing a conviction and stating that the
improper admission of collateral crimes evidence is presumed harmful error
because of the danger that the jury will accept the collateral crime evidence as
evidence of guilt of the crime being tried).
Further, when the defendant takes the stand, the law provides that the State
must limit its inquiry of a defendant’s prior record to asking if he or she has ever
been convicted of a felony or a crime involving dishonesty. See § 90.610(1), Fla.
Stat. (1991). If the defendant acknowledges such a record, there can be no inquiry
into the details. See Hopkins v. State, 413 So. 2d 443 (Fla. 3d DCA 1982) (“[T]he
- 35 -
State was empowered to ask only whether the defendant had ever been convicted
of a crime . . . .”) (citing Whitehead v. State, 279 So. 2d 99, 100 (Fla. 2d DCA
1973)).
Yet Henry’s counsel ignored and abandoned the protections provided his
client from the disclosure of such damning evidence of past criminal conduct, and
chose to have Henry himself tell the jury about his horrendous record, disclosures
that would seal Henry’s fate in his current trial. In addition, these voluntary
disclosures opened the door to further detailed questioning by the State on crossexamination regarding the other murders. These other offenses immediately
became the focus of the trial. 16 Further, because Henry’s counsel introduced this
evidence and opened the door to the State’s cross-examination of Henry regarding
the details of the other crimes, the State was able to destroy the legitimacy of the
otherwise viable voluntary intoxication defense by delving into the details of the
16. In fact, the prosecutor in this case was shocked by defense counsel’s
action in disclosing Henry’s past crimes, and, in an abundance of caution, asked
the Court to confirm his right to now inquire about the details of the crimes:
Mr. Castillo: In an abundance of caution it’s my feeling that
Mr. Fuente at this point has opened the door to all three murders in
terms of my cross-examination.
Mr. Fuente: No question.
Mr. Castillo: I just was very concerned about making an error
at this point.
The Court: You wanted to make sure. You can ask about each
and every one of them.
- 36 -
Roddy murder, which involved a stabbing when Henry was not under the influence
of crack cocaine. 17
17. Q. Mr. Henry, in response to Mr. Fuente’s questions, you have
already admitted to the jury that with Eugene Christian’s death, your
total number of people that have been killed at your hand now
numbers three; is that correct?
A. Yes, sir.
Q. And the first of your victims was Patrici[a] Roddy in 1975;
is that correct?
A. Yes, sir.
Q. And the circumstances by which Patrici[a] Roddy was
killed at your hand was that she was stabbed repeatedly in the chest
and neck area, was she not?
A. I was told that, yes, sir.
Q. You don’t have a recollection of having done that?
A. The incident? Yes, sir.
Q. That is where you stabbed her. Wasn’t it in the throat and
in the chest?
A. That is what I were told, sir.
Q. You did that repeatedly, didn’t you? There were numerous
stab wounds to her chest and neck area, weren’t there?
A. That is what I were told, sir.
Q. There were repeated stab wounds to her arms where she
fended you off from this attack, wasn’t there?
A. I heard that, yes, sir.
Q. As a matter of fact, you had one gash in her arm so bad it
almost cut her hand off; isn’t that true?
A. I don’t know, sir.
Q. Do you remember how many times you stabbed Patrici[a]
Roddy to death before you killed her?
A. No, sir.
Q. Patrici[a] Roddy’s murder occurred in the automobile that
you and she were in, didn’t it?
A. Yes, sir.
Q. And you and she were not the only people in that car in
1975, were you?
A. Yes, we was.
- 37 -
In addition, by the voluntary disclosure of this information, the defense
provided the State with a motive for the murder being tried, that Henry killed
Eugene to eliminate him as a witness to his mother’s stabbing, and that Henry,
having been in prison before, did not want to return. 18 During its cross-
Q. There wasn’t some children in the back seat of the car, Mr.
Henry?
A. No, sir.
Q. You are sure about that?
A. I am positive.
....
Q. Now, in that 1975 murder, you were not under the influence
of cocaine when you killed Patrici[a] Roddy, were you?
A. I was under the influence of alcohol.
Q. Alcohol?
A. Yes, sir.
Q. The disposition of the case is that you received a fifteenyear sentence; isn’t that right?
A. Yes, sir.
Q. And you were released in 1983 from that fifteen-year
sentence?
A. Yes, sir.
18. Q. Were you worried that if it was the police they may stop
you and then find Eugene Christian in the car with you and began to
unravel the murder of Suzanne Henry?
A. No. I was under the impression if I was stopped, it was
possible that they would find the cocaine in my possession.
Q. You weren’t worried at all about the Suzanne Henry
murder?
A. Worried? What you mean, worried?
Q. You weren’t worried the police may have arrested you for
that murder?
A. Sir, eventually, I would have gotten arrested. But it was my
intention also to turn myself in.
Q. But you never did that, did you?
- 38 -
examination, the State explicitly laid out for the jury the fact that Henry had been
to jail already for the Roddy murder and did not want to go back to jail, thereby
developing a substantial motive for why Henry would have intentionally killed
Eugene. 19
A. No, it didn’t get to that.
Q. Does Eugene Christian know your voice or did he know
your voice?
A. He had spent better than twelve years around me.
Q. Do you think Eugene Christian knew your voice?
....
A. Yes, sir.
Q. You think he knew your voice, didn’t he?
A. It’s possible he knew my voice.
Q. Is Eugene Christian able to recognize you when he saw
you?
A. Yes, sir.
Q. He knew who you were, didn’t he?
A. Sure, he knew who I was.
19.
A. I was out of jail right at three years before Suzanne’s death.
Q. Now you had testified that you had been to prison as a result
of killing Patrici[a] Roddy; isn’t that true?
A. I had been to prison for the death of Patrici[a] Roddy, yes,
sir.
Q. And you did not want to go back to prison for that––well,
you didn’t want to go back to prison again, did you?
A. Who wants, who wants to go to prison?
Q. You knew that if you were convicted of the murder of
Suzanne Henry, you would go back to prison, didn’t you? At the very
least, you would go back to prison?
A. I am aware of that, yes, sir.
Q. And you were aware of that when you took Eugene
Christian from the room in his home with Suzanne Henry, weren’t
you?
A. Took? I carried him. I didn’t take him.
- 39 -
Of course, even more severe prejudice ensued when the jury learned that
Henry had not only been convicted of murdering Suzanne Henry but that another
judge and jury had already determined that Henry qualified for the death penalty
for that crime. In other words, another judge and jury had already considered and
rejected any pleas by Henry to spare his life. 20 Certainly one of the many
prejudicial effects of disclosing this death sentence to the jury was the danger that
this jury would not feel the same responsibility for a life or death recommendation
since another jury had already decided Henry should die.
Q. But you knew that?
A. Knew what?
Q. That if you were convicted of the murder of Suzanne Henry,
that you would end up at the very least in prison again?
A. If I were convicted of Suzanne.
....
Q. Mr. Henry, as much as perhaps you hated to do it, it was the
choice of staying out of prison or the electric chair or the life of
Eugene Christian, and Eugene came up short?
A. No, sir, it wasn’t a choice. That was something that
happened that shouldn’t never have happened.
Q. In your mind two murders was no different than three?
A. No, sir, that wasn’t in my mind.
Q. Isn’t it true, Mr. Henry, that you killed him in the same
manner that you killed Suzanne Henry and Patrici[a] Roddy, the way
you know to be effective?
A. What?
Q. By stabbing in the throat?
20.
Q. As you are on the witness stand, now, you are under a
death sentence from Pasco County?
A. Yes.
Q. For the murder of Suzanne Henry?
A. Yes, sir.
- 40 -
Finally, no one denies, including the majority, that all of this damning
evidence voluntarily disclosed by Henry was otherwise inadmissible, and that
under ordinary circumstances its admission over the objection of the defense would
have surely denied Henry of a fair trial for this particular crime. See Heuring, 513
So. 2d at 124.
In reviewing these matters, the trial court’s order actually demonstrates in
great detail the misjudgments of trial counsel and repeatedly characterizes defense
counsel as having “exhibited bad judgment,” but ambiguously and mistakenly
suggests that Henry may not be entitled to relief because all of counsel’s “tactical
decisions” are completely immune from review regardless of their reasonableness.
Now, on review, the majority ignores the trial court’s assessment of counsel’s
conduct as “bad judgment,” but embraces the flawed concept that counsel’s “bad
judgments” were “tactical decisions” immune to review. However, the reality is
that there was simply no good reason for counsel to do what he did. If there was,
we would have a different case.
Importantly, trial counsel’s “tactical” decision to directly disclose past
homicides to the guilt-phase jury does not give counsel a pass upon any
postconviction review of counsel’s performance. Strickland, 466 U.S. at 688
(holding that counsel’s actions, including “tactical” decisions, must be “reasonable
considering all the circumstances”); Schwab v. State, 814 So. 2d 402, 411 (Fla.
- 41 -
2002) (citing Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000)) (stating that
strategic decisions are not ineffective assistance if counsel’s decision was
reasonable); Wright v. State, 446 So. 2d 208, 209 (Fla. 3d DCA 1984) (holding
that “[w]hile a deliberate preemption of the prosecutor’s projected crossexamination concerning the defendant’s prior convictions is ordinarily a welljustified tactical decision,” it was not in that case because the misdemeanor
convictions defense counsel elicited on direct examination were all otherwise
inadmissible). 21
Under Strickland, there must be some rational basis in law or fact to support
counsel’s critical decisions. For example, we have already noted counsel’s choice
21. This writer has no qualms in conceding that it may sometimes be in a
defendant’s best interest to admit shortcomings or even concede guilt in order to
focus on the penalty phase of a capital trial. See Florida v. Nixon, 543 U.S. 175,
191 (2004) (“Counsel therefore may reasonably decide to focus on the trial’s
penalty phase, at which time counsel’s mission is to persuade the trier that his
client’s life should be spared.”); Yarborough v. Gentry, 540 U.S. 1, 9 (2003)
(holding that admitting a defendant’s shortcomings during the defense’s closing
argument did not constitute ineffective assistance of counsel and stating that “[b]y
candidly acknowledging his client’s shortcomings, counsel might have built
credibility with the jury and persuaded it to focus on the relevant issues in the
case”); Gamble v. State, 877 So. 2d 706, 713-15 (Fla. 2004) (holding that defense
counsel conceding during his opening statement that the defendant was guilty of
second- or third-degree murder but not first-degree murder did not constitute
ineffective assistance of counsel).
But such circumstances simply do not exist here. When the defense presents
a well-substantiated and viable voluntary intoxication defense, it simply defies
logic for the defendant to tell the jury himself the details of his otherwise
inadmissible past crimes. Obviously, such disclosures would naturally tend to
undermine, rather than bolster, an otherwise credible and legal defense.
- 42 -
in the instant case to abandon an insanity defense in favor of a voluntary
intoxication defense. There was a good reason for this since the experts
equivocated on insanity whereas there was substantial evidence of intoxication.
But there is no good reason for counsel’s catastrophic decision to disclose the
defendant’s horrendous prior record. The record demonstrates without dispute that
there is a complete lack of any rational connection between counsel’s duty to
provide a competent defense in the case by the presentation of a voluntary
intoxication defense, and the preemptive and irrational decision to voluntarily
disclose the defendant’s egregious history.
Perhaps the most intriguing aspect of defense counsel’s testimony is that
concerning his reasons for disclosing the fact that another judge and jury had
already determined that Henry should be put to death for the earlier murder of his
wife. The trial court’s order sets this out:
With respect to the testimony elicited regarding the fact that
defendant already received a death sentence for killing Suzanne
Henry, at the October 17, 2003, evidentiary hearing, the following
transpired on cross-examination:
HARRISON: Now, let me ask you this, sir. You
also brought out to the jury in the guilt phase that he had
been––I don’t question the fact of the Suzanne Henry
homicide, I know the Court has ruled that this was
inextricably related to the Eugene Christian homicide,
that is the fact of the case, but why in the world did you
have to tell the jury, to bring it out through Mr. Henry,
that he had already been sentenced to death for killing
Suzanne?
- 43 -
FUENTE: Well, the thinking there was that would
hopefully help them to accept the involuntary
intoxication defense since they would have known that
he had already been sentenced to death for another case.
HARRISON: Telling the jury that he had been
sentenced to death for killing Suzanne would strengthen
your voluntary intoxication defense?
FUENTE: It would––it would hopefully persuade
this jury to not sentence him to death for this homicide
because of this defense in this case.
HARRISON: Well, how are those two situations
related, that is, how is the fact that he had been sentenced
to death for Suzanne’s murder, how would that enhance
your voluntary intoxication defense?
FUENTE: Hopefully, this jury would not be as
disposed or as inclined to recommend death had––if they
already knew he had been sentenced to death for
homicide where there was no evidence that he was
intoxicated at the time he killed her. The evidence was
that he was intoxicated at the time he committed the
second homicide.
(See October 17, 2003, Transcript, pages 113-115, attached).
After reviewing this portion of claim I, the testimony, evidence,
and arguments presented at the October 17, 2003, evidentiary hearing,
the court file, and the record, the Court finds that Judge Fuente made a
tactical, strategic decision to elicit testimony from defendant that he
had already received a death sentence for the murder of Suzanne
Henry in an attempt to get the jury to accept the voluntary intoxication
defense presented in this case.
Trial court order at 26-27. However, the same trial court order sets out the
evidence of cocaine use presented at trial:
Judge Fuente further testified that defendant did testify on his own
behalf at trial, testified that he used cocaine earlier that day at Grant’s
Pool Hall before the murder of Suzanne Henry, and testified that he
spent about $200 on cocaine in Plant City. (See October 17, 2003,
Transcript, pages 95-96, Trial Transcript, Volume V, pages 561-562,
- 44 -
565, 569-574, 577-578, 596-599, 615-619, attached). The record also
reflects that Mr. Nathan Giles, Jr. and Ms. Sharon Toomer testified at
trial that defendant had used cocaine earlier in the day at Grant’s Pool
Hall. (See Trial Transcript, Volume VI, pages 746-748, 750-755, 763766, 768-770, attached).
Trial court order at 16 (emphasis supplied). Hence, in addition to the incredibly
damaging effect of counsel’s disclosures on their face, his jury is now told directly
that his voluntary intoxication preceded the killing of his wife and that another
judge and jury have obviously rejected any claim that such intoxication should
prevent his conviction or sentence of death. Under any reasonable assessment
counsel’s explanation that a jury’s knowledge of a prior sentence of death would
make them more sympathetic to a voluntary intoxication defense is patently
unreasonable and simply strains credulity.
Counsel’s suggestion that the jury would be less impacted at the penalty
phase by first hearing of Henry’s record at the guilt phase cannot withstand
scrutiny, since it assumes the jury’s rejection of Henry’s defense while counsel is
still presenting and advocating that defense. In fact, it makes no sense whatsoever
to argue that a juror would be more inclined to believe a voluntary intoxication
defense if he or she first learned that the defendant had stabbed his first wife to
death when not intoxicated and had also been convicted of the first-degree murder
- 45 -
of his second wife and was sentenced to death for that crime. 22 If anything, it
would make a reasonable juror more skeptical of voluntary intoxication as a
defense. Certainly counsel could not reasonably expect that a jury that saw the
intoxication defense abandoned in the guilt phase would even consider it in the
22. It is true that this Court unanimously held that evidence of Suzanne
Henry’s murder was admissible in the present trial for Eugene Christian’s murder
because “the facts of Suzanne Henry’s murder were so inextricably intertwined
with Christian’s murder that to separate them would have resulted in disjointed
testimony that would have led to confusion.” Henry v. State, 649 So. 2d 1361,
1365 (Fla. 1994) (citing Griffin v. State, 639 So. 2d 966 (Fla. 1994); Erickson v.
State, 565 So. 2d 328, 333 (Fla. 4th DCA 1990)). However, the fact that Henry
had been sentenced to death for the murder of Suzanne Henry would not have been
admissible if defense counsel had not elicited it from the defendant. See §
90.610(1), Fla. Stat. (1991) (“A party may attack the credibility of any witness,
including an accused, by evidence that the witness has been convicted of a crime if
the crime was punishable by death . . . .”) (emphasis added). Because Henry’s
counsel elicited more than the bare-bones facts of the Suzanne Henry murder case,
the State was able to delve into greater and more prejudicial detail regarding that
murder and the Patricia Roddy murder. See McCrae v. State, 395 So. 2d 1145,
1152 (Fla. 1980) (“(T)he rule limiting the inquiry to the general facts which have
been stated in the direct examination must not be so construed as to defeat the real
objects of the cross-examination. One of these objects is to elicit the whole truth
of transactions which are only partly explained in the direct examination.”)
(quoting 4 Spencer A. Gard, Jones on Evidence § 25:3 (6th ed. 1972)); Leonard v.
State, 386 So. 2d 51, 52 (Fla. 2d DCA 1980) (“We agree that further inquiry by the
prosecutor would have been proper had defense counsel ‘opened the door’ by
inquiring into the circumstances or dates of any of the crimes, or by inquiring into
the nature of one or two of appellant’s prior convictions . . . .”).
- 46 -
penalty phase. Indeed, at one point in the postconviction hearing, counsel candidly
acknowledged he had made a serious mistake. 23 He was candid and he was right.
To his credit, counsel did not abandon his voluntary intoxication defense at
the postconviction hearing. Rather, he acknowledged its efficacy, especially in
light of his further decision not to advance an insanity defense because of the
equivocation of his experts. There was no such equivocation with the voluntary
intoxication defense. In short, in a case where voluntary intoxication is a viable
defense to first-degree murder, effectively giving up any chance for a seconddegree finding in the guilt phase is not a reasonable tactic. 24 In fact, that chance
represented Henry’s only hope for life.
23. Former defense counsel made this statement as he was testifying
regarding the disclosure of defendant’s earlier homicide conviction and prison
sentence:
Well, my answer to that question now is it wouldn’t serve any purpose
at all. I can’t tell you why I did that, other than just in the interest of
being completely candid. I know that he got out of prison a certain
time and committed these new offenses within a matter of a year or
two thereafter.
24. The majority also points to Shere, 742 So. 2d 215, as supportive to its
holding that Henry’s counsel’s actions were not unreasonable. Majority op. at 17.
In Shere, this Court held counsel to be not ineffective for offering evidence of a
codefendant’s admission to the murder during the guilt phase when the State had
presented during its case-in-chief damaging evidence that the defendant had given
several inconsistent statements after his arrest and there was no “doubt that the
defendant played a major role in the murder and subsequent coverup.” Id. at 220
(quoting trial court’s order). This Court held that counsel had made a tactical
decision after considering every alternative carefully, and therefore, the
- 47 -
defendant’s ineffective assistance of counsel claim was meritless. Id. (citing State
v. Bolender, 503 So. 2d 1247, 1250 (Fla. 1987)). This Court further stated:
Although this strategy may appear futile, this court has seen weaker
arguments prevail in front of a jury of untrained citizens. Finally, the
fact that introducing portions of the codefendant’s statement opened
the door to other inculpatory evidence was not of much consequence
given the fact that the defendant’s statements to law enforcement and
his friends were already before the jury and those statements
portrayed him as a cold and ruthless killer.
Id. (quoting trial court’s order). However, the same cannot be said for Henry’s
case. Without counsel’s pre-emptive disclosures, the State was forbidden from
delving into the areas of examination that Henry’s counsel elicited from Henry on
direct examination, unlike the Shere defendant’s statements being introduced by
the State during its case. While counsel in both cases may have been experienced
in capital cases, this does not diminish the factual distinctions between the two
cases.
Similarly, the majority relies on Atwater v. State, 788 So. 2d 223 (Fla.
2001), to support its conclusions that Henry’s counsel was not ineffective because
this “Court found that defense counsel was not deficient for conceding defendant’s
guilt to second-degree murder in its closing argument and supporting this
concession by showing photographs of the crime scene to the jury.” Majority op.
at 18. It is true that counsel in both cases believed there was no chance of
acquittal. However, if Henry’s counsel had simply performed just as counsel in
Atwater did, in that he conceded guilt to second-degree murder and showed crime
scene photographs, there would be no merit to Henry’s claim that he received
ineffective assistance of counsel. Unfortunately, Henry’s counsel took many steps
past simply conceding guilt of second-degree murder as defense counsel in
Atwater had done. Similarly, in McNeal v. Wainwright, 722 F.2d 674 (11th Cir.
1984), the federal appeals court held that counsel was not ineffective in making a
tactical decision to admit guilt of manslaughter before the jury nevertheless
convicted the defendant of first-degree murder. Id. at 676. If Henry’s counsel had
only conceded to a lesser-included crime, which the voluntary intoxication defense
would have supported, then there would be no dispute regarding counsel’s
effectiveness.
- 48 -
In an attempt to save counsel’s “bad judgment,” the majority cites Florida v.
Nixon, 543 U.S. 175 (2004), to support its conclusion. Majority op. at 13-14.
However, this is like comparing apples and oranges. Not only is there no valid
comparison between the cases, but there are many distinctions between the
situation in Nixon and the situation here. First and foremost, in Nixon, there was
no viable defense such as voluntary intoxication. 543 U.S. at 180-81. Nixon’s
counsel concluded “that Nixon’s guilt was not ‘subject to any reasonable dispute’ ”
and every court considering the case agreed with this assessment. Id. at 180-81,
181 n.2. Further, Nixon was disruptive and violent during the trial and was absent
for almost all of the trial, which stands in stark contrast to Henry’s cooperative
behavior on the stand and throughout the trial. Id. at 182.
In Nixon, the United States Supreme Court noted, “Counsel therefore may
reasonably decide to focus on the trial’s penalty phase, at which time counsel’s
mission is to persuade the trier that his client’s life should be spared. . . . [C]ounsel
cannot be deemed ineffective for attempting to impress the jury with his candor
and his unwillingness to engage in ‘a useless charade.’ ” Id. at 191-92 (emphasis
added) (citing United States v. Cronic, 466 U.S. 648, 656-57 n.19 (1984)). The
key words in this rule of law are “reasonably” and “useless charade.” Those
circumstances do not exist here. Henry’s voluntary intoxication defense was not a
“useless charade.” Indeed, it was well supported by the evidence and the law.
- 49 -
Hence, unlike Nixon, the circumstances here do not support a strategy of throwing
in the towel during the guilt phase.
II. Prejudice
As noted, the trial court declined to rule on the first prong of Strickland and
instead ruled that Henry suffered no prejudice by counsel’s conduct. To establish
prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. The defendant is not
required to show that the deficient performance “more likely than not altered the
outcome in the case.” Id. at 693.
The prejudice Henry suffered in his trial by the admission of evidence of his
collateral crimes is apparent. Our Williams rule law on collateral crime evidence
demonstrates the prejudice. In fact, under our case law, prejudice is presumed.
See, e.g., Straight, 397 So. 2d at 908 (stating that evidence of other criminal
activity “is presumed harmful error because of the danger that a jury will take the
bad character or propensity to crime thus demonstrated as evidence of guilt of the
crime charged”). That in fact is why the prosecution was shocked at defense
counsel’s action and was extremely cautious in getting assurance from the trial
court that the door had now been opened to fully explore this evidence.
- 50 -
Of course, here we have defendant’s own lawyer rather than the State
improperly disclosing evidence of collateral crimes, but the prejudice remains the
same. Defense counsel voluntarily established for the jury Henry’s propensity to
commit acts of extreme violence, and the prosecutor took full advantage of the
opportunity to delve into the specific facts of the other murders and to emphasize
the parallels between those murders and Eugene Christian’s murder. Based on this
evidence, the prosecution was further able to establish a malicious motive for the
killing of Eugene Christian and a solid basis for a finding of specific intent and
premeditation necessary for a first-degree murder conviction. A critical excerpt
from the prosecution’s closing argument vividly illustrates the prejudice:
Mr. Fuente also told you that the murder of Patrici[a] Roddy and the
murder of Suzanne Henry are not a part of that case. That is not true.
They are a part of this case. They are a part of this case because it is
the motive, it is the reason, that Eugene Christian is dead. Because
John Henry had the taste of prison as a result of killing Patrici[a]
Roddy. And he served his time for that and got out. And, then, when
Suzanne Henry was murdered at his hand, he realized that going back
to prison or perhaps worse would be his fate. And those two
circumstances together, the first murder and the second murder,
produced the motive for the killing of Eugene Christian. They are
part of this case.
By voluntarily allowing the State and the jury to focus on Henry’s horrendous prior
record, the defense completely undermined the only viable defense it had, that of
voluntary intoxication. In essence, counsel’s decision relieved the State of its
- 51 -
burden of proof and destroyed any chance for the defense. 25 Defense counsel
provided the State with a conviction well before the case went to the jury, a
conviction that would be immune to appeal but, under Strickland, not immune to
postconviction scrutiny of counsel’s conduct.
CONCLUSION
This Court’s obligation, like that of the trial court, is to assess counsel’s
performance from an objective standpoint in determining whether counsel actually
acted reasonably and competently and provided Henry with a genuine adversarial
testing of his guilt or innocence. In my view, it is apparent that counsel first acted
reasonably in choosing a voluntary intoxication defense. In fact, that was the
defendant’s only hope. But whatever hope that defense held was completely wiped
out by counsel’s subsequent decision to disclose the defendant’s horrendous record
to the same jury that would evaluate his voluntary intoxication defense.
25. Counsel’s decision also flies in the face of our bifurcated trial system for
capital crimes, in which less evidence of a defendant’s past record is permitted in
the guilt phase than in the penalty phase for exactly the reason that is illustrated
here: it is simply too prejudicial to allow evidence of previous crimes to infect the
minds of jurors who are deciding a matter of guilt or innocence that could result in
the end of a human life. See § 921.141(1), Fla. Stat. (1991) (“Upon conviction or
adjudication of guilt of a defendant of a capital felony, the court shall conduct a
separate sentencing proceeding to determine whether the defendant should be
sentenced to death or life imprisonment . . . .”); Buford v. State, 492 So. 2d 355,
358 (Fla. 1986) (“[U]nder Florida’s bifurcated capital sentencing scheme, the
sentencing judge and the reviewing court determine whether the defendant was
convicted under circumstances which would prohibit imposition of the death
sentence.”) (citing Brown v. State, 473 So. 2d 1260, 1265 (Fla. 1985)).
- 52 -
As we have done in countless Williams rule cases over many decades, we
should acknowledge the inherently prejudicial effect of counsel’s ill-conceived
actions, and permit Henry a trial where his defense can receive a fair hearing
without the “inherent prejudice” brought on by counsel’s disastrous decision, or as
the trial court would say, “bad judgment.”
An Appeal from the Circuit Court in and for Hillsborough County,
Robert E. Beach, Senior Judge - Case No. 85-CF-014273
Baya Harrison, III, Monticello, Florida,
for Appellant
Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, and Candance M.
Sabella, Assistant Attorney General, Chief of Capital Appeals, Tampa, Florida,
for Appellee
- 53 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.