# Petition — HENRY v. WAINWRIGHT (No. 83-6430)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983

## Text

ORIGINAL

: 83-6430 (RECEIVED
gh: Mee.

IN THE Oriive vv arte ULERK
SUPREM™ “ONET, US.
———_—

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JAMES DUPREE HENRY,
Petitioner,
vs.

LOUIE L. WAINWRIGHT, Secretary,
Plorida Department of Corrections,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RICHARD L. JORANDBY
Public Defender

CRAIG S. BA”NARD*
Chief Assistant Public Defender

15th Judicial Circuit of Plorida
224 Datura Street -- 13th Floor
West Palm Beach, Florida 33401
(305) 837-2150

Counsel for Petitioner

*Attorney of Record

QUESTIONS PRESENTED

1. Whether the Eighth and Pourteenth Amendments and the

Court's decision in Enmund v. Florida permit the imposition of a

death sentence for an offense involving an accidental death which
happened during the commission of a felony where no lethal force

was employed?

2. Whether a capital sentencing jury in Florida, consisten-
tly with the Eighth and Fourteenth Amendments, may be permitted
to base a death verdict sclely upon nonstatutory aggravating
factors where no other Procedures were employed that would
Substitute for the finding of a Statutory aggravating

circumstance?

TABLE OF CONTENTS

QUESTIONS PRESENTED POCAOROE SURESH OEOPEOOS ECOSOC COC oOS i
TABLE OF AUTHORITIES SP COSOCESCSSESEDSED OER ESSe coco Cee iii
CITATIONS TO OPINIONS BELOW COSCON OES SE SESODdOCSeCCCS 1
JURISDICTION O° SRORS FEDER SEEORE ERED SHE DEE W S00 % 5600 ccccecee lb

APPENDIX C: Statutory Provisions DUE Keebccccece le

TABLE OF AUTHORITIES

CASES CITED

Adams v. State, 341 So.2d 765 (Fla. 1977)

Barclay v. Florida, __U.S.__, 103 S.Ct. 3418 (1983)
Chambers v. State, 339 So.2d 204 (Pla. 1976)

Cooper v. State, 336 So.2d 1133 (Fla. 1976)

Dobbert v. Florida, 432 U.S. 282 (1977)

Drake v. Francis, F.2d , No. 83-8047
(llth Cir. Feb. 25, 1984)

Eddings v. Oklahoma, 455 U.S. 104 (1982)

Enmund v. Florida, 458 U.S. 782 (1982)

Fisher v. United States, 328 U.S. 463 (1946)
Furman v. Georgia, 408 U.S. 238 (1972)

Godfrey v. Georgia, 446 U.S. 420 (1980)

Gregg v. Georgia, 428 U.S. 153 (1976)

Harich v. State, 437 So.2d 1082 (Pla. 1983)
Knight v. State, 338 So.2d 976 (Pla. 1976)
Lockett v. Ohio, 438 U.S. 586 (1978)

Maggard v. State, 399 So.2d 973 (Fla. 1981)
McCampbell v. State, 421 So.2d 1072 (Pla. 1982)
McCaskill v. State, 344 So.2d 1276 (Fla. 1977)
Messer v. State, 330 So.2d 142 (Fla. 1976)
Mullaney v.Wilbur, 421 U.S. 684 (1975)

Proffitt v. Florida, 428 U.S. 242 (1976)

Pulley v. Harris, U.S. , 104 S.Ct. 871 (1984)
Richardson v. State, 437 So.2d 1091 (Pla. 1983)
Rose v. State, 425 So.2d 521 (Fla. 1983)

Ross v. Harper, 716 F.2d 1528 {llth Cir. 1983)

Spaziano v. Plorida, No. 83-5596
cert. granted Jan. 9, 1984

Tedder v. State, 322 So.2d 908 (Pla. 1975)
Wainwright v. Goode, U.S. , 104 S.Ct. 378 (1983)
Zant v. Stephens, U.S. , 103 §.Ct. 2733 (1983);

- iii ~

14, 19

13, 14, 15
12, 13, 19
16
18
10

18
15, 16
14

passim

No.

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1983

JAMES DUPREE HENRY,
Petitioner,
vs.
LOUIE L. WAINWRIGHT, etc.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioner prays that the writ of certiorari issue to review
the judgment of the United States Court of Appeals, Fifth Circuit
(Unit B), filed December 13, 1983.

CITATION TO OPINIONS BELOW

The opinion of the court of appeals that is the subject of

this petition is reported as Henry v. Wainwright, 721 F.2d 990

(Sth Cir. 1983)(Unit B) and is set out in Appendix A hereto.
Rehearing en banc was denied on January 25, 1984 and is not yet
reported. A copy of the Order denying rehearing is set out as
Appendix B hereto. The prior opinions of the court of appeals

are reported as Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981)

(Unit B), reh. en banc den., 669 F.2d 731 (5th Cir. 1982) (Unit

B), cert. gtd and remand, 457 U.S. 1114 (1982), judgment adhered

to on remand, 686 F.2d 311 (5th Cir.)(Jnit B), cert. gtd and

remand, U.S. , 103 S.Ct. 3566 (19&3). The opinion of the

district court is unreported. The opinion of the Supreme Court

of Florida on direct appeal is reported as Henry v. State, 328

So.2d 430 (Fla. 1976) and on state post-conviction as Henry v.
State, 377 So.2d 692 (Fla. 1979).

JURISDICTION

The judgment of the court of appeals below was entered on
December 13, 1983 and petitioner's timely petition for rehearing
and suggestion for rehearing en banc was denied on January 25,
1984. Jurisdiction of the Court is invoked pursuant to 28 U.S.C.
$1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Eighth and Fcurteenth Amendments to
the Constitution of the United States. It further involves
Section 921.141, Florida Statutes (1973), entitled "Sentence of
death or life imprisonment for capital felonies; further proceed-
ings to determine sentence" and Section 782.04, Florida Statutes
entitled "Murder." Due to their length, the statutes are set out
in Appendix C hereté.

STATEMENT OF THE CASE

A. The Offense

Mr. Henry was charged with first degree murder involving the
death of Z.L. Riley. The death occurred during the commission of
a robbery at Mr. Riley's home in March of 1974. Mr. Riley's
apartment had been ransacked and he had been laid on his bed and
tied. The cause of death was, essentially, that the deceased had
Swallowed his tongue because a rag placed around his mouth as a
gag had apparently pushed against his tongue while he was lying
on his back. The medical examiner analogized the cause of death
to an epileptic victim Swallowing his tongue during a seizure
(Record at 836). The deceased also had some bruises and lacera-
tions that were unconnected to the cause of death, were "quite
superficial" and which were unclear as to the time of their
occurrence (Record at 828, 838, 842). Mr. Henry was arrested
three days later (Record at 850) and gave a custodial statement
to the police in which he admitted the robbery of Mr. Riley,
though stating that he did not know that Mr. Riley had died until
being told by police (Record at 66).
B. The Trial

Mr. Henry was indicted for first degree murder and trial by
jury began on June 24, 1974. Though the indictment charged

premeditated murder (Record at 154), in accord with Plorida law

such an indictment included the theory of felony murder, and the

prosecution proceeded on that theory. The jury rendered a
general verdict of guilty and the case proceeded to the senten-
cing trial on the same day. During the sentencing trial, the
prosecution was allowed to admit evidence that Mr. Henry had
resisted arrest by shooting the arresting officer and was
permitted to present evidence of criminal charges made against
Mr. Henry, though Mr. Henry had entered pleas to less severe
offenses. Because this evidence involved offenses for which
there had been no convictions entered, defense counsel objected
to the introduction of the evidence as not being encompassed by
the statutory list of aggravating circumstances. The judge
overruled these objections because it was his intention to allow
"generally charged" evidence. Mr. Henry presented testimony of
friends concerning his character and helpfulness (Record at
1017-26).

The case was then submitted to the jury. The trial judge
charged the jury as follows:

{[Y)ou will render an advisory sentence to the
Court based upon the following matters:

Whether sufficient aggravating circum-
stances exist for you to recommend the Death
Penalty or Life Imprisonment.

In considering aggravating circumstances,
you shall consider all factors which are
aggravating including, but not limited to, the
following:

{listing of the aggravating factors as they are
set out in the statute]

In considering mitigating circumstances,
you shall consider all factors which are
mitigating including but not limited to the
following:

{listing of the mitigating factors as they are
set out in the statute]

Your advisory sentence must be the
recommendation of a majority of your number.
That is, seven or more of you must agree upon
the recommendation you submit to the Court.
(Record at 1035-39).
During its deliberations the jury inquired whether “there
[is] any way of a prisoner getting out of prison in less than 25
years, some way other than parole when sentenced to life impris-

onment." (Record at 1039). The judge reread the instruction that

one sentenced to life imprisonment is "required to spend no less
than 25 calendar years before being eligible for parole....* Id.

By a 7 to 5 vote the jury reached an advisory verdict
recommending the death sentence (Record at 1041). The judge
immediately imposed the death sentence (Record at 1048).

C. The Direct Appeal.

Mr. Henry appealed his conviction and death sentence to the
Supreme Court of Plorida. Ina per curiam, 4 to 2 decision the
Plorida Supreme Court upheld Mr. Henry’s conviction and death
sentence. In ruling upon the death sentence the court quoted the
trial judge's findings of fact and concluded that "[wle find that
the judgment and sentence of the lower court in this cause is in

accordance with the justice of the cause." Henry v. State, 328

So.2d 430, 432 (Pla. 1976). Rehearing was denied as was a

petition for a writ of certiorari. Henry v. Plorida, 429 U.S. 951

(1976), reh. den., 429 U.S. 1124 (1977).
D. The Post-Appeal Proceedings
Mr. Henry filed a motion to vacate his judgment and sen-

tence, pursuant to Fla.R.Crim.P. 3.850, in the state trial court.

This motion was denied on November 19, 1979 and affirmed by the

Florida Supreme Court on November 27, 1979, Henry v. State, 377

So.2d 692 (Pla. 1979).

Mr. Henry then, on November 27, 1979, filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. §2254 in the United
States District Court, Middle District of Plorida. By order
filed February 14, 1980 (Record at 1172) the district court
granted the petition for writ of habeas corpus insofar as the
death sentence and ordered that a new penalty trial be held, and
denied relief as to all other grounds. Respondent Wainwright then
appealed, and Mr. Henry filed a cross-appeal. The court of
appeals affirmed the district court's order granting the writ of

habeas corpus, Henry v. Wainwright, 661 F.2d 56 (Sth Cir. 1981)

(Unit B), but because of its disposition, did not reach Mr.
Henry's cross-appeal. The Court granted certiorari and remanded
the cause for further consideration in light of Engle v. Isaac,
456 U.S. 107 (1982). Wainwright v. Henry, 457 U.S. 1114 (1982),

The previous judgment was adhered to on remand by the court of

appeals. Henry v. Wainwright, 686 F.2d 311 (Sth Cir. 1982) (unit

B). Wainwright again applied tor certiorari. The Court granted

certiorari and remanded for further consideration in light of

Barclay v. Florida, 0,8. , 103 S.Ct. 3418 (1983). Wainwright

Vv. Henry, a , 103 S.Ct. 3566 (1983). On December 13,

1983, the court below issued its opinion reversing the district
court's order insofar as it had granted the writ of habeas corpus
and affirmed the denial of habeas corpus relief on the issues

raised by Mr. Henry on his cross-appeal. Henry v. Wainwright, 721

F.2d 990 (Sth Cir. 1983) (Unit B).

REASONS FOR GRANTING THE WRIT

I.
THE EXTREME PENALTY OF DEATH IS IMPERMISSIBLE
UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS FOR
AN OFFENSE INVOLVING AN ACCIDENTAL DEATH THAT
OCCURRED DURING A FELONY WHERE NO LETHAL PORCE
WAS EMPLOYED.

Henry's case involves an accidental death where no lethal
force was employed, but a conviction for -first degree murder, and
death sentence because that death occurred during the progress of
a felony. The death was accidental because it resulted from
quite attenuated means. The victim had been bound, laid on his
bed and a piece of cloth had been tied around his mouth as a gag.
These circumstances logically indicate an apparent attempt to
avoid lethal force by an attempt only to restrain him during the
time that the taking would be accomplished. However, the gag
apparently pushed up against the victim's tongue. This caused
the death when in essence the deceased, an elderly man, swallowed

his tongue -- the medical examiner analogized the cause of death

to an epileptic seizure victim Swallowing his tongue.1

1 Though the deceased also had some bruises and laceration, they
had no connection with the death and since it is unclear when
they may have actually occurred, they may have happened in the
process of tying up the deceased. The lacerations on the
deceased's neck referred to by the lower court were, as
characteried by the medical examiner, “quite superficial," had
nothing to do with the cause of death, and were made by one or
two "scratches" (Record at 828, 838, 842).

Accordingly, the facts of this case strongly indicate that
the death was unintended. The attenuated means by which the
death occurred do not logically support an intent to cause death
and more strongly demonstrate that the death was wholly un-
intended and accidental.?

The question thus squarely presented by this case is whether
a death sentence may be imposed consistently with the eighth and
fourteenth amendments for an offense involving an accidental
death where no lethal force was employed or intended. This

question thus concerns the Court's holding in Enmund v. Florida,

458 U.S. 782 (1982) where the death sentence was held invalid for
an armed robber who did not intend that a life be taken where a
co-perpetrator shot and killed the victim.

Under Florida law, the state of mind of the defendant is
immaterial in a prosecution under a theory of felony murder. As
the Plorida Supreme Court explains:

In its most basic form, the historic felony
murder rule mechanistically defines as murder
any homicide committed while perpetrating or
attempting a felony. It stands as an exception
to the general rule that murder is homicide
with the specific intent of malice afore-
thought. Under the felony murder rule, state of
mind is immaterial. Even an accidental killing
during a felony is murder.

Adams v. State, 341 So.2d 765, 768-69 (Fla. 1977) (emphasis

supplied, footnotes omitted).

It is quite evident that petitioner was convicted under this
"mechanistic" rule for an “accidental killing” where state of
mind is immaterial. As the decision below acknowledges neither
the indictment, the jury charge nor the verdict required any

finding as to state of mind. 721 F.2d at 995; App 6a.3 The

2 Binding and gagging even more than not showing an intent to kill,
actually more logically show an intent not to kill. Restraining
someone is contradictory to an intent to kill that person. In
fact Mr. Henry's custodial statement to the police indicated that
he thought the victim was alive when he left the apartment, and
that he did not even know that he had died until he was told by
the police (Record at 66).

3 Although the indictment charged first degree murder “from a
premeditated design,” under Plorida law such an indictment is
held to charge both premeditated murder and felony murder.
Knight v. State, 338 So.2d 201 (Fla. 1976). The jury was
instructed on both theories and returned only a general verdict
of guilt that did not specify the theory upon which it relied.

Prosecution plainly proceeded on a theory of felony murder.4
There has never been a finding in the state courts at any level
that petitioner intended that a human life be taken.

The death sentence was imposed “regardless of whether
[Henry] intended or contemplated that life would be taken,"

Enmund v. Florida, 458 U.S. at 801; that is, regardless of

whether the offense involved only an “accidental killing during a
felony.” For purposes of Florida felony murder all that mattered
was that the death occurred while a felony was being committed;
nothing more was required. And that “mechanistic” rule is all
that supports the conviction and death sentence. It is the legal
fiction that made this offense first degree murder -- intent had
no role in the determination. sr. Henry's state of mind -- his
"moral guilt," id. -- was "beside the point," id. at 788, in the
imposition of the death Sentence upon Mr. Henry.

State of mind constitutionally cannot be "beside the point"
under the Court's holding in Enmund. This case falls squarely
within the Enmund reasoning for there is no relevant distinction
between it and the situation presented in Enmund. The only
difference between Mr. Henry's case and Mr. Enmund's case is
causation, not menta) state or culpability. That difference is,
however, constitutionally irrelevant. For Purposes of the death
penalty intent is the relevant factor, not causation: "It is
fundamental that ‘causing harm intentionally must be punished
more severely than causing the same harm unintentionally'.*
Enmund, 458 U.S. at 798 (quoting H. Hart, Punishment and
Responsibility 162 (1968)). mr. Henry was treated for purposes

of the death penalty the same as if he had intentionally caused

the death. This mechanical treatment under the felony murder
rule was precisely the constitutional infirmity found by the

Court in Enmund.

4 Por example, the prosecutor argued that he needed to show the
other wounds on the deceased, even though admittedly they were
unrelated to the death, in order to establish the state's theory
of forceful taking for the robbery to support its felony murder
theory. In closing argument, though initially mentioning the
Florida law regarding both theories, the prosecutor summarized
the evidence and expressly concluded: “Ladies and gentlemen,
that is felony murder in the first degree" (emphasis added)
(Record at o73}.

The Court's own judgment that the eighth amendment did not
permit the imposition of the death penalty upon Enmund, 458 U.S.
at 797, applies with equal force to Mr. Henry's death sentence.
Enmund was a participant in the "serious crime" of armed robbery,
id., and thus under Florida law he and his fellow armed robbers
"did commit murder," id. at 798. However, they were "subjected
to the death penalty only because they killed as well as robbed."
Id. The question thus was "not the disproportionality of death
as a penalty for murder, but rather the validity of capital
punishment for Enmund's own conduct." Id.

The same is true for Mr. Henry. Under the same legal theory
as applied to Enmund, Mr. Henry "did commit murder." He was
subjected to the death sentence only because a death happened
during the felony. "The focus must be on his conduct,” 458 U.S.
at 798, not upon a mechanical rule. The Court "insist[s] on
‘individualized consideration as a constitutional requirement in

imposing the death sentence.'" Id. (quoting Lockett v. Ohio, 438

U.S. 586, 605 (1978)). Just as in Enmund, the record here "does
not warrant a finding that [Mr. Henry] had an intention of ...
facilitating a murder." 458 U.S. at 798. However, causing harm
intentionally must be punished more severely than causing the
same harm unintentionally. Id. Mr. Henry did not intend to kill
and did not employ lethal force; and though his actions caused
the death, there was no intent to do so -- the record strongly
indicates the opposite, the intent Only to restrain. Yet the
State, utilizing its legal fiction of felony murder as it had
done in Enmund, treated Mr. Henry the same as if he had inten-
tionally caused the death. For the reasons expressed in Enmund,
"(t)his was impermissible under the Eighth Amendment.” Id.
Likewise, the social purposes of the death penalty that were
examined in Enmund, retribution and deterrence, do not support
the death senténce in this case. The Court was "quite
unconvinced” that the death penalty would deter someone who
commits a robbery with no intent that a life will be taken: “It
seems likely that ‘capital punishment can serve as a deterrent

only when murder is the result of premeditation and deliber-

ation.’" Enmund, 458 U.S. at 799 (quoting Pisher v. United

States, 328 U.S. 463, 484 (1946) (Prankfurter, J., dissenting)).

Deterrence would seem even less likely for an “accidental killing
during a felony” where lethal force is not employed. One who
intends only to rob, and intends that the victim not be killed,
is hardly any more likely to be deterred from the reeuiting
accidental death, than is the robber such as Enmund who sends his
co-perpetrators into a house armed with loaded weapons to force-
fully take property.

As to the second social purpose of the death penalty,
retribution, the justification depends upon the defendant's
"intentions, expectations, and actions." Enmund, 458 U.S. at
800. "American criminal law has long considered a defendant's
intention -- and therefore his moral guilt -- to be critical to
‘the degree of [his] criminal culpability.'" Id. (quoting

Mullaney v. Wilbur, 421 U.S. 684, 698 (1975)). Where the

defendant has no intent to cause the resulting death, his "moral
guilt” is not the same as one who intentionally causes the same
harm. "Criminal culpability” is plainly different, and without
intent, retribution is not legitimately served by the death
penalty.

"For purposes of imposing the death penalty, [Mr. Henry's]
criminal culpability must be limited to his participation in the
robbery.” His punishment must be tailored to his "moral guilt,"
which must in turn depend upon his intent. Culpability focuses
on actual intent, not upon the fictional intent of felony murder.
Mr. Henry's actual intent was no different than that of a robber
and his moral guilt must be judged for purposes of the death
penalty only upon that basis. As in Enmund, however, the death
penalty was imposed upon Mr. Henry “regardless of whether [he]
intended or contemplated that life would be taken." Enmund, 458
U.S. at 801. And as in Enmund, a death sentence imposed under
such circumstances, violates the eighth and fourteenth amend-
ments.

A significant eighth amendment question in thus presented by
this case. The Court must resolve the question, not only because
Mr. Henry's life depends upon its resolution by the Court, but

further because the court below has misperceived and misapplied

the Court's holding in Enmund. The court of appeals holds that
Enmund approved the death sentence for any person who "participa-
ted in the killing." 721 F.24 at 995; App. 5b. Thus, since Mr.
Henry had "no accomplice," the court held, "Enmund is no bar to
the death sentence here." Id.5 At the same time the court did
not disagree that Henry “did not intend that the victim die." Id.
The court thus upheld the death sentence because Mr. Henry
forcibly bound and gagged the deceased and because he acted
alone. The death sentence was upheld "regardless of whether
(Henry) intended or contemplated that a life would be taken."
Enmund, 458 U.S. at 801.

In a later decision the court of appeals explained that it
does not believe that Enmund applies where though the defendant
lacks intent to kill, he actually participates in the acts that
lead to death. The court narrowly restricts Enmund exclusively
to murders with accomplices. The court explained:

The crime of felony murder may be applied in
two different situations. First, it may be used
to impute the crime of murder to a Participant
in the felony who took no part in the actual
murder. This type of felony murder will be
referred to as accomplice culpability. Second,
a participant in the commission of the felony
who lacked the requisite intent to murder but
did not take part in the actual killing may be
convicted of murder. In this case, the intent
to commit the felony is imputed to the murder
so that a showing of malice becomes unnec-
essary. Because we are dealing here with this
latter type of felony murder, the Enmund
decision is not controlling.

Drake v. Francis, F.2d___, NO. 83-8047, slip op. at 16 (llth

Cir., Feb. 29, 1984).

The restrictive view of Enmund being followed by the court
of appeals, overlooks the Court's central holding. For purposes
of the death penalty the focus must be on culpability and
culpability is measured by intent, by moral guilt. Where such
intent is no greater than that for robbery, the death sentence

cannot constitutionally be imposed. The per se rule of the lower

5 The court relied upon its decision in Ross v. Ho , 716 F.2a
1528 (llth Cir. 1983). However, Ross' challenge was only that
there had been no finding that he had intended to cause death;
he did not claim that the evidence showed a lack of intent. Id.
at 1532. The panel of the court of appeals found, however, that
the record demonstrated that Ross "possessed an intent to kill"
and thus rejected his claim. Id. at 1533. Ross thus is a case
that is different from Hen y-

court focuses away from that intent -- intent is “beside the
point" -- in favor of a mechanical rule that upholds the death
sentence even though and regardless of whether the defendant had
no intent to cause or facilitate the killing. The lower court
states no justification for such a broad holding, nor, as
discussed above, could it do so for neither deterrence nor
retribution come into play. The logical result of the court's
reasoning, eschewing as it does a consideration of intent in
favor of causation, would sanction a death sentence for any
homicide so long as the defendant participated in acts that
contributed to the death, no matter how unintended. Causation
is, however, an improper focus. After all, Earl Enmund could be
said to have "caused" his victim's death by planning the armed
robbery and sending his co-perpeirators into an occupied house
with loaded weapons for the purpose of forcibly taking property
from the victims. The lower court has thus misread the holding
of Enmund.

A significant question regarding the eighth amendment is
therefore presented for the Court's review. The lower courts
have misconstrued the Court's holding in Enmund and only the
Court can,correct that misconstruction. Mr. Henry's case
presents the appropriate case upon which to review the question.
The facts of Mr. Henry's case show an accidental death and a
death sentence imposed regardless of the lack of intent, premised
solely upon the fictional and “mechanical” felony murder rule.
Because Mr. Henry's case presents the question in narrow focus

both factually and legally and because the Court is the only

court that can grant relief, the Court must grant certiorari.

II

THE EIGHTH AND FOURTEENTH AMENDMENTS WERE
VIOLATED BECAUSE MR. HENRY'S JURY WAS PERMITTED
TO BASE A DEATH VERDICT SOLELY UPON NONSTAT-
UTORY AGGRAVATING FACTORS A BECAUSE THERE
WERE NO OTHER CONPINEMENTS P THE JURY'S
SENTENCING DISCRETION TO SUBSTITUTE FOR THAT
"CONSTITUTIONALLY NECESSARY" SAPEGUARD.

Mr. Henry's capital sentencing proceeding lacked the one
procedural safeguard deemed constitutionally indispensible by the
Court: a finding of at least one Statutory aggravating circum-
stance. "([A] death sentence may not rest solely on a non-
Statutory aggravating factor ...." (original emphasis) Barclay

v. Plorida, 0.8. , 103 S.Ct. 3418, 3433 (1983) (Stevens, Jeon

concurring) (citing Zant v. Stephens, U.S. » 103 S.Ct. 2733,

2742-2743 (1983)). Moreover, there were no other Procedures in
Mr. Henry's case that would serve as "checks on arbitrariness,"

Pulley v. Harris, 0.8. , 104 S.Ct. 871, 880 (1984), so as to

Substitute for that missing safeguard. The capital sentencing
trial was completely open-ended -- the jury was told to consider
anything in aggravation specifically without limitation, was not
required to find aggravating factors beyond a reasonable doubt or
even told that the state bore the bi cden of proof, and in-
admissible evidence was introduced.

An important eighth and fourteenth amendment question is
presented for the Court's review. The court of appeals below,
after twice unanimously holding that the open-ended procedures in
Mr. Henry's case directly violated the eighth amendment require-
ment of regularity in capital sentencing, has relied upon the
Court's decisions in Zant and Barclay and extended and misapplied
their holdings in a manner that Sanctions capital sentencing
without procedural safeguards. The breadth of the holding below
and the procedures it approves calls for review by the Court, for
only the Court can correct the misperception of its precedent.

We will discuss below the lack of any requirement that the
jury base its death verdict on a Statutory aggravating factor,
the lower courts misperception of the role of the jury in Florida
capital sentencing, and the unchecked nature of the other

procedures employed in Mr. Henry's case.

A. The Jury Was Permitted To Base Its Death Verdict Solely On
Nonstatutory Aggravat ng Factors,

Unlike the juries in Barclay and Zant, Mr. Henry's jury was

not told that it was required to find at least one statutory
aggravating circumstance before it could issue a death verdict.
Henry's jury was told only that it should render a se-*encing
verdict based on "[w]hether Sufficient aggravating circumstances
exist or sufficient mitigating circumstances exist, for you to
recommend the death penalty or life imprisonment," and that,
"{iln considering aggravating gircumstances, you shall consider
all factors which are aggravating, including but not limited to,
[statutory aggravating circumstances] ."

The combined effect of first permitting the prosecutor to
Present anything in aggravation and urging the jury to consider
any of it or indeed anything at all; and second permitting the
jury to reach a death verdict without explicitly finding a
Statutory aggravating circumstance, was to create the substantial
risk that the jury's verdict aid rest "solely on a nonstatutory
aggravating factor," and thus wholly undermine one of the two
Primary requisites of a valid death sentencing scheme, see Zant,
103 S.Ct. at 2742, for there is simply no assurance that "capital
Punishment [will] be imposed fairly, and with reasonable consis-

tency” as the eighth amendment requires. Eddings v. Oklahoma, 455

U.S. 104, 112 (1982).

An underlying premise of the Court's 1976 decisions appro-
ving the capital sentencing procedures in Plorida, Georgia and
Texas and its decisions last term in Barclay and Zant was the
role of statutory aggravating factors in narrowing and limiting
the unbridled discretion disapproved in Furman. See Pulley v.
Harris, 104 S.Ct. at 876-879 (analyzing the procedures approved
in the 1976 cases, each of which requires the finding of at least

one statutory aggravating circumstance).

In Zant v. Stephens, Supra, “the emphasis was on the consti-
tutionally necessary narrowing function of Statutory aggravating
circumstances." Pulley v. Harris, 104 S.Ct. at 871 (emphasis

added). See also Proffitt v. Plorida, 428 U.S. 242, 256 (1976)

(recognizing that a death sentence would not be upheld solely on

nonstatutory aggravating factors); Barclay v. Florida, 103 S.Ct.

at 3426, 3428 (plurality opinion) (same and noting that Proffitt
questioned the constitutional propriety of basing a death
sentence solely on a nonstatutory aggravating factor); id. at
3430, 3431, 3433 (Stevens, J., concurring) (noting the consti-
tutional necessity of finding at least one statutory aggravating
factor).

Accordingly, the one procedural safeguard against arbitrary

capital sentencing as required by Gregg v. Georgia, 428 U.S. 153

(1976), is the critical and “constitutionally necessary” finding
of a statutory aggravating circumstance -- a procedure by which
findings are made pursuant to legislative guidelines that
meaningfully narrow the class of convicted murderers upon whom a

death sentence may be imposed. See also Godfrey v. Georgia, 446

U.S. 420, 427-28 (1980) (noting the Court's emphasis upon the
need for channelling sentencing discretion by “clear and objec-
tive standards" that provide "specific and detailed guidance” in
selecting those murders who may be sentenced to death in order to
avoid arbitrary imposition of the death penalty). It is the key
procedure that distinguishes the current approved capital

sentencing schemes from those invalidated by Furman v. Georgia,

408 U.S. 238 (1972).

That procedural safeguard was, however, absent in this case.
The juries in Proffitt, in Barclay, and Zant were properly
instructed. So too was the jury “properly instructed" in

Wainwright v. Good, U.S. , 104 S.Ct. 378, 383 (1983).6 The

jury in Henry's case was not, however, properly instructed.

B. The Court of Appeals Misapprehended the Critical Role of the
Jury in Florida Capital Sentencing.

Mr. Henry's jury vote for a death sentence by the barest of
margins, 7 to 5 -- a change of one vote would have meant a life
verdict and would have thus changed the entire character of the

later proceedings at the trial and appellate levels. It was,

6 Also, in Gre v. Georgia, supra, the Court emphasized the need
to provide the juries with “careful instructions on the law and
how to apply it before they are authorized to decide the merits

of a lawsuit." 428 U.S. at 193. The Court said that any other
course would be “virtually unthinkable” Id.

however, this hair-thin death verdict that the court of appeals
thought would allow the unlimiting jury instruction in this
case.

The opinion below acknowledges precisely the constitutional
violation present in this case: "It is impossible to determine
what evidence the jury relied on in sentencing Henry to death,"
721 F.2d at 994; App. 5a. Though it acknowledged the constitu-
tional error, the court reasoned that the concurring opinion by
Justice Stevens in Barclay "did not directly [fn.3] address
whether the jury as well as the judge must specifically find a
Statutory aggravating factor to be present.” Id. (citing Barclay

v. Florida, 103 S.Ct. at 3433 (Stevens, J., concurring)). In its

footnote 3 the court explained that Barclay's jury voted for life
imprisonment whereas Henry's jury voted for death and thus
concluded that "we cannot discern a reason for invalidating the
death sentence here where the sole distinction is that a jury
voted for the death penalty." 721 F.2d at 994 n.3; App. 5a
(original emphasis). Secondly, the court reasoned that the jury
"acts only in an advisory capacity" and therefore it did not
matter that the jury was not constitutionally instructed. Id.

The court's reasoning is based upon two glaring miscon-
ceptions.

First, the reasoning wholly disregards and undermines the
determinative role of the jury in Florida capital sentencing.
That disregard is in marked contrast to how the Court views the
jury in Florida. In every decision where the Court has reviewed

the Plorida statute -- from Proffitt to Barclay -- it has empha-

sized and reaffirmed the jury's crucial role.” The Court's view
and reliance upon the importance of the Florida jury is in
complete accord with how state law treats the jury. The jury is

of paramount importance. Florida's capital sentencing system

7 See Proffitt v. Florida, 428 U.S. at 249-50 (noting the strict
Standard of review in Florida where a jury votes for life
imprisonment). In Dobbert vy. Plorida, 432 U.S. 282 (1977) the
Court emphasized the “exacting standards of Tedder[v. State, 322
So.2d 908 (Fla. 1975)}" id. at 295-96, that come into effect
where a jury votes against the death penalty. The Court again
emphasized and relied upon the jury's important role in its
decision in Barclay v. Plorida, 103 S.Ct. at 3425, 3427, 3428
(plurality opinion) (relying upon the safeguard of the Tedder
Standard); id. at 3430 & n. 1 (same).

involves a “scheme of checks and balances in which the input of

the jury serves as an integral part." Messer v. State, 330 So.2d

142 (Fla. 1976). Thus, “the jury recommendation should be
followed because that body has been assigned by history and
statute the responsibility to discern truth and mete oyt

justice." Chambers v. State, 339 So.2d 204, 209 (Fla. 1976)

(England, J., concurring); accord Cooper v. State, 336 So.2d

1133, 1140 (Fla. 1976) (The jury is “the one institution ... most
honored for fair determinations of questions decided by balancing
opposing factors."). Accordingly, with regard to the "respective
functions of the judge and jury in death penalty cases," the
judge's role "is primarily to insure the jury's adherence to law
and to protect against a sentence resulting from passion rather

than reason.” Chambers v. State, 339 So.2d at 208 (England, J.

concurring). The jury “represent[s] the judgment of the commun-
ity as to whether the death sentence is appropriate” in a given

case. McCampbell v. State, 421 So.2d 1072, 1075 (Fla. 1982);

accord, e.g., McCaskill v. State, 344 So.2d 1276, 1280 (Fla.

1977) (juries are the “conscience of our communities”). In
Florida there thus may be "no denigration of the jury's role" in

capital sentencing. Richardson v. State, 437 So.2d 1091, 1095

(Fla. 1983).

It is because of the critical importance of the jury's
verdict that in order to overrule a life verdict, a death
sentence may be imposed only if the “exacting standards of
Tedder" are met. Under that strict standard a death sentence may
not be imposed unless “the facts suggesting a sentence of death
fare] so clear and convincing that virtually no reasonable person

could differ. Tedder v. State, 322 So.2d at 910. Thus, “a

jury's advisory opinion is entitled to great weight, reflecting
as it does the conscience of the community, and should not be
overruled unless no reasonable basis exists for the opinion.”

Richardson v. State, 437 So.2d at 1095.8

8 Consistent with the Tedder standard and the important role given
to the jury in Plorida capital sentencing, the Florida Supreme
Court views errors occurring in the jury proceedings more
strictly than errors in a sentencing judge's findings. While it
applies a harmless error rule to errors it finds in a judge's

sentencing order (this was the situation in Barclay v. Florida,
supra), the Florida court does not apply a harmless error rule to

0 -16- = pita os fae

Accordingly, what the decision below misses in its deroga-
tion of the Florida jury, is the drastic difference that a life
verdict would have meant in Henry's case at both the trial and
appellate levels of the Florida courts. The razor-thin 7 to 5
jury verdict for death meant that the Tedder standards did not
have to be met in imposing the death sentence. The trial judge
was not required to find by clear and convincing evidence that no
reasonable person could differ over the necessity of the death

sentence. See Barclay v. Florida, 103 S.Ct. at 3428 (plurality

opinion) (recognizing the rule “prohibiting the trial judge from
overriding" a jury's life verdict unless the Tedder test is met).
Likewise, the Florida Supreme Court was not required to and did
not give its heightened scrutiny to Henry's death sentence. See
id. at 3428 (recognizing the stricter review employed by the
Florida Supreme Court where death is imposed over a life
verdict); id. at 3430 (Stevens, J., concurring) (noting that the
Florida court “will scrutinize with special care any death
sentence that is imposed after a jury has recommended a lesser
penalty.").

The jury in Florida does matter very much and the lower
court's disparagement of the jury's role overlooks the fact that
the jury's verdict critically shapes both the judge's and
appellate court's subsequent findings and review. Had Henry's
jury voted for life, the exacting Tedder standards would have
come into play with the likely result that the death sentence
would not have been imposed or if it had been it would not have
been affirmed. And it is a very real likelihood that had the
jury been properly instructed it would have returned a life

verdict. This was the finding of the district court after review

errors in the jury proceedings. See Maggard v. State, 399 So.2d
973 (Pla. 1981) (reversing for a new penalty trial though
upholding a statutory aggravating factor and finding none in
mitigation, because an error occurred “during the [jury]
sentencing hearing").

of the entire record.9 Such likelihood is further reinforced by
the marginal 7 to 5 vote of Henry's jury; a change of even one
vote would have meant life imprisonment.19

The court of appeals decision thus critically misperceived
the harm to Henry from the inadequate jury CaEER. (The dispar-
agement of the jury by the lower court not only was inconsistent
with Florida law discussed above, but it raises the question

presently pending in the Court in Spaziano v. Florida, No.

83-S5¥6 (cert. granted Jan. 9, 1984) regarding the extent to
which a judge's sentencing decision can be substituted for the
jury's decision consistently with the federal Constitution).
Second, the decision below misses the pivotal difference
between Barclay and Henry. Barclay's jury was properly in-
structed on the requirement of finding a Statutory aggravating
circumstance and Henry's jury was not. It thus widely misses the
mark to reason that the "sole distinction" between Henry and
Barclay is that Barclay's jury voted 7-5 for life. Tho decision
is thus premised on faulty logic that since Barclay was not
harmed with a life verdict, then Henry with a death verdict could
not be harmed. Of course, however, Henry was harmed by the death
verdict that was premised on constitutionally inadequate jury
instructions. The reasoning of the iower court is thus based on

a further misconception.

9 The district court found that “had the jury been properly
instructed and guided at the sentencing hearing, it is entirely
possible that its recommendation might not have been for the
imposition of the capital penalty.” (Record at 1189). There are
a number of factors that militate in favor of and would support
a life verdict by the jury, including the wnitigating character
evidence presented by Henry at trial and, perhaps more impor-
tantly, the nature of the offense as involving an accidental,
unintended death (see point I, supra).

10 See Rose v. State, 425 So.2d 521 (Fla. 1983) (6 to 6 vote means
life); Harich v. State, 437 So.24 1082 (Pla. 1983) (same). It is
also interesting to note that under the holdings of both Rose and
Harich, Henry's jury was improperly instructed under state law
that a majority verdict was required for a life sentence.

C. There Was No Other Confinement of the Jury's Sentencing
Discretion

The jury in Henry's case was not constitutionally instruc-
ted. The sentencing process lacked the key eighth amendment
safeguard that has emerged from the evolution of Furman through

.
the Court's decisions in Gregg, Zant, Barclay and Pulley.

Henry's jury was not required to find a statutory aggravating
circumstance before reaching its death verdict.

Since this “constitutionally necessary” safeguard was
absent, it is appropriate to examine the other procedures
employed to determine whether they could make up for that
omission.11 In this case it could not . There was simply nothing
else in the process by which the jury cast its decisive hairline
vote for death that narrowed or confined its sentencing dis-
cretion so as to provide a substitute for the safeguard of
finding of a statutory aggravating circumstance.

The sentencing proceedings in this case may accurately be
characterized as open-ended: (1) the prosecutor was allowed to
present any evidence in aggravation without limitation; (2) the
jury was permitted and urged to base a death verdict on any of it
or indeed anything at all; (3) the jury was not told that the
state bore the burden of proving aggravating factors or that
aggravating circumstances were required to be proven beyond a
reasonable doubt; (4) the aggravating factors were not defined
for the jury, they were simply listed from the statute; and (5)
as previously discussed, the jury was allowed to base its death
verdict solely upon nonstatutory aggravating factors. In short
the procedural context presented by Henry involves "permitting

the jury to consider whatever evidence of nonstatutory aggrava-

ting circumstances the prosecution might desire to present or the

jurors might discern ...," Henry v. Wainwright, 661 F.2d 56, 59

11 In reviewing the omission of a procedural safeguard from a
particular capital sentencing process, the Court has looked at
the other procedural protections in the process to determine
whether they could adequately substitute for the omitted safe-
guard. See Pulley v. Harris, 104 S.Ct. at 879, 880 (looking at
whether the other California procedures were so lacking as to
nevertheless require the omitted proportionality review).

(Sth Cir. 1982) (Unit B) (emphasis added), and no guidance to the
jury as to how to reach its verdict, i.e. weighing and burden of
proof.

There was thus no substitute for the omission of the
requirement that the jury find a statutory aggravating factor.
For example, had the evidence been properly limited, as required
by state law, to only statutory aggravating factors or if the
jury had been properly instructed to rely only upon statutory
aggravating factors, as also required by state law, then perhaps
it might not have mattered that the jury was not told that it was
required to find a statutory factor before it could return a
death verdict. Under such circumstances the jury's discretion
might have been confined by other safeguards. But there were no
such other safeguards in this case.

The Court's opinions in both Barclay and Zant emphasize the
importance of confining the jury's discretion. In Zant the Court
had been told by the Georgia Supreme Court that "a different
result might be reached if the failed circumstances [considered
by the sentencing jury] had been supported by evidence not

otherwise admissible ...." (emphasis added) 103 S.Ct. at 2740-41.

The notion that there are some kinds of evidence that are "not
+++ admissible" in aggravation presupposes the existence of
restrictions upon the prosecutor's license to present anything he
pleases to the jury at a penalty trial. In Georgia, the evidence
was expressly authorized by statute, see 103 S.Ct. at 2747, and
the Court therefore began from the premise that "any evidence on
which the jury might have relied in this case ... was properly
adduced at the sentencing hearing .... [and was] properly before
the jury," (Id. at 2748); emphasis added). Stephens’ grievance
was thus reduced to a claim that "[a]lthough ... the evidence was

admissible, ... the trial court's instructions 'may have unduly

directed the jury's attention to [it.]'" Id. (Emphasis added).
Likewise, in Barclay there was no claim that the evidence on
which the sentencing judge relied in making the inappropriate
finding of an aggravating circumstance was not properly before
the sentencer. "On the contrary, this evidence was properly

introduced ...." (emphasis added) 103 S.Ct. at 3427 (plurality

opinion). Once again, as in Zant, “even though, under state law,
these factors did not support findings of statutory aggravating
circumstances, the information [itself] appears to have been

properly before the advisory jury and the judge." (emphasis

added) Id. at 3434.

Thus, neither Zant nor Barclay countenances: (1) a death
sentence premised upon consideration of evidence in aggravation
which has been placed before the sentencer improperly, or (2) the
notion that, simply because a State may permit the sentencer to
consider nonstatutory aggravating features of a case appearing
from properly admitted evidence, it may also open-end the penalty
trial completely, so as to license the prosecutor to present
anything at all. If this kind of license were contemplated, then
the carefully repeated language in Barclay and Zant about
"properly admitted” and “admissible” evidence would be altogether

out of place, since there would be no such thing as improperly

admitted or inadmissible evidence.

The decision below, however, disregards this limiting
language of Barclay and Zant, and reasons instead that since
Barclay and Zant allow nonstatutory aggravating factors to be
considered, they must also at the same time allow admission of
such nonstatutory evidence. To hold otherwise, “would create an
anomaly" as the panel sees it. 721 F.2d at 994; App. 5a. There
is however no anomaly in this -- it is at heart of the eighth
amendment requirement for consistent application of capital
sentencing. The effect of the lower court's decision is to
disregard the limitations of Zant and Barclay and to completely
open-end the penalty trial.

Accordingly there were no other safeguards in the jury
proceedings that served to confine the jury's discretion so as to
substitute for the key safeguard that was omitted. The penalty
proceedings in this case were in a true sense open-ended
completely. The procedures sanctioned by the lower court
decision are indeed very broad, permitting an unchecked license

to present and consider anything at all, while at the same

-21-

permitting the jury to base its death verdict solely upon non~-

statutory aggravating factors ~~ 4 procedure said by the Court in
Zant and Barclay to be unconstitutional.

The Court should grant certiorari to review the significant
question as to the limits on capital sentencing discretion
allowed by the eighth and fourteenth amendments. As it now
stands, the Henry decision sanctions a process virtually without
limits and the absence of a safeguard deemed constitutionally
necessary by the Court. It is a question of broad reach affec-
tion the administration of capital punishment in Florida and
elsewhere. The Court is the only court that can resolve the now
open question.

CONCLUSION

Significant eighth and fourteenth amendment questions are
resented by this case, each of which involve the proper applica-
tion of the Court's precedent. Because the lower court has
resolved those questions in a manner that misperceives the
Court's decisions, review by the Court is required. The petition
for a writ of certiorari must be granted.

Respectfully Submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida
224 Datura Street/l3th Floor
West Palm Beach, Florida 33401
(305)/837-2150 f

| aa my /
ay / Nr
[CRAIG ST BARNARD

— Assistant Public Defender

Counsel for Petitioner

@-22-

APPENDIX A

APPENDIX A

JUDGMENT BELOW

* Former Fifth Circuit Case, Section &{1) of Pub-

721 FEDERAL REPORTER, 2d SERIES

James Dupree HENRY, Petitioner-Appel-
lee, Cross-A ppeliant,
v

Louie L. WAINWRIGHT, Secretary, De-
partment of Corrections, Respondent.
Appellant, Cross-Appellee.

No. 80-5184.

United States Court of Appeals,
Fifth Cireuit.*
Unit B

Dec. 13, 1983.

After the United States District Court
for the Middle District of Florida, John A.
Reed, Jr., J., granted petition for writ of
habeas corpus, the Court of Appeals, 661
F.2d 56, affirmed, and denied rehearing en
banc, 669 F.2d 731. The United States Su-
preme Court, 457 US. 1114, 102 S.Ct. 2922.
73 L.Ed2d 1326, vacated and remanded.
On remand, the Court of Appeals, 686 F.2d
311, affirmed. The United States Supreme
Court, 163 S.Ct. 3566, granted certiorari and
vacated and remanded judgment. On re-
mand, the Court of Appeals, James C. Hill,
Cireuit Judge, held that: (1) trial court
properly relied on nonstatutory agyravating
factors in imposing death sentence; (2) er-
ror in failing to instruct jury that agegravat-
ing circumstances must be found beyond
reasonable doubt was harmless; and (3) ap-
plication of Florida aggravating circum.
Stance that the crime was especially hei-
nous, atrocious or cruel, was not improper
in view of vile and atrocious acts committed
by petitioner upon his victim and before his
victim's death.

Affirmed in part and reversed in part.

1. Homicide 354

Actions of petitioner ir resisting arrest
and shooting police officer as officer knelt
on ground begging not to be shot again
were not constitutional!; protected conduct,
and thus evidence of those actions was ad-
missible as clearly having 2 materiz! bear-

lic Law 96-452, October 14, 1980.

HENRY v. WAINWRIGHT

991

Cite as 72! F246 800 (1983)

ing on character of defendant, and there-
fore could be relied upon as a nonstatutory
aggravating Gauges in imposing
death penalty.

2 Criminal Law ¢ 1208.1(6)

Procedure followed in petitioner's case
under Florida law, where judge is sentenc-
ing authority and jury acts only in advisory
capacity, returning general verdict recom-
mending life or death, where both judge
and jury heard substantial evidence of stat-
utory aggravating factors, and judge spe-
cifically found statutory aggravating fac-
tors to be present, supported finding that
petitioner’s death sentence did not rest sole-
ly on a nonstatutory facwr so as to preclude
consideration of such factor in imposing

sentence.

3. Habeas Corpus @=85.5(15)

Record demonstrated that trial judge
allowed jury, in imposing sentence, to con-
sider al] mitigating circumstances “included
but not limited to” statutory circumstances,
and judge specificajly found that as to miti-
gating circumstances, there were absolutely
none, refuting petitioner’s contention that
trial judge improperly considered only stat-
utory mitigating circumstances.

4. Habeas Corpus ¢=30(3)

That state Supreme Court did not af-
firmatively pass on issue whether it was
error to consider nonstatutory aggravating
circumstance in imposing death sentence
did not invalidate such sentence.

5. Habeas Corpus ¢30(1)

For failure to give instruction to be
harmless, evidence must be so overwhelm-
ing that omission beyond reasonable doubt
did not contribute to verdict.

6. Habeas Corpus €-30(1)

Error in failing to instruct jury that
aggravating circumstances must be found
beyond reasonable doubt was harmless, as
evidence of aggravating circumstances was
overwhelming, jury never beard an instruc-
tion during trial on any standard of proof
other than beyond reasonable doubt, and, in
Florida, judge, not jury, imposes final sen-
tence.

7. Criminal Law ¢=1208.1(6)

That jury, which returned general ver-
dict of guilty in prosecution charging peti-
tioner with both murder with intent to kill
and felony-murder, did not specifically find
that petitioner intentionally killed victim
did not preclude sentencing petitioner to
death, where petitioner bound and gagged
his victim, tortured him and cut him with a
razor blade, victim died by strangling on
gag petitioner placed in his mouth, and
petitioner could not argue that he did not
perform fatal act with intent at least to
seriously and wantonly harm victim.

8. Criminal Law o=641.13(2)

Failure to instruct jury that aggravat-
ing circumstances must be found beyond
reasonable doubt was harmless error, and
therefore petitioner was not denied effev-
tive assistance of counsel on ground that his
attorney did not object to trial judge's
charge. U.S.C.A. Const.Amend. 6.

9. Criminal Law 641.13(2)

Notwithstanding that under state law,
instruction allowing consideration of non-
statutory aggravating factors in imposing
death sentence was erruncous, petitioner's
counsel was not ineffective for failing to
object to that charge, as instruction did not
constitute constitutional error. U.S.C.A.
Const.Amend. 6.

10. Criminal Law ©641.13(1)
Constitution does not mandate error-
free counsel.

11. Criminal Law 1208.2
Sentencing authority has discretion in
deciding whether to impose death penalty.

12. Homicide e354

Trial judge’s reliance on aggravating
circumstance, murder while committing
robbery, did not result in automatic imposi-
tion of death penalty, as it was not uncon-
stitutional for state of Florida, in construct-
ing death sentencing procedure, to consider
murders committed in course of other dan-
gerous felonies to be reprehensible, nor did
use of underlying felony shift burden of
proof to defendant; rather, state had to

- 2a -

992

nevertheless prove existence of aggravating
circumstances.

13. Habeas Corpus ¢=30(3)

State law error that trial judge in re-
garding aggravating circumstances of mur-
der in commission of robbery and murder
for pecuniary gain as separate and distinct
aggravating circumstances did not raise
possibility that death sentence was not im-
posed in a consistent rational manner, as
record gave no indication that sentencing
judge considered it important that same
facts supported two statutory provisions;
therefore, that error did not render death
sentence invalid.

14. Crimina] Law @1208.1(6)

There was no constitutional error in
trial judge’s imposition of death sentence
immediately after jury recommended life
sentence, as judge expressly stated on rec-
ord that he had carefully considered case
for some time and felt prepared to rule
without delay.

15. Criminal Law 1147

Florida court’s methods of review, em-
ploying a standard of review in cases in
which jury recommends sentence of life of
whether facts supporting death sentence
are so clear and convincing that virtually no
reasonable persou could differ, while not
employing clear and convincing standard
when jury recommends death, are constitu-
tionally valid.

16. Habeas Corpus ¢=92(1)

It is not function of Court of Appeals
to legislate state laws and procedures; it
only evaluates the constitutional attacks
upon them.

17. Criminal Law > 1208.1(4)

Even if in county in which petitioner
was sentenced, 16.3% of all capital indict-
ments resulted in death sentence and 41.7%
of all convictions resulted in death sentence,
while statewide percentages were 9.7% and
24.3% respectively, there was no constitu-
tional violation, as petitioner alleged no ra-
** Honorable Edward S. Smith, U.S. Circuit

Judge for the Federal Circuit, sitting by desig-

721 FEDERAL REPORTER, 2d SERIES

cial, sexual or other inherently suspicious
discrimination, did not argue that death
penalty was somehow unsuited in his partic-
ular case, and did aot raise a claim that
Florida court failed properly to conduct a
proportionality review, but claimed only
that Florida death penalty was arbitrary

end capricious as applica.
18. H =344
Application of Florida aggravating cir-

cumstance that the crime was especial! ,
heinous, atrocious or cruel, was not improp-
er in view of vile and atrocious acts com-
mitted by petitioner upon his victim and
before victim's death. West's F.S.A.
§ 921.141(5Xh).

Wallace E. Allbritton, Charles A. Stampe-
los, Tallahassee, Fla., for respondent-appel-
lant, cross-appellee.

Craig S. Barnard, Chief Asst. Public De-
fender, West Palm Beach, Fla., for petition-
er-appellee, cross-appellant.

Appeals from the United States District
Court for the Middle District of Florida.

ON REMAND FROM THE SUPREME
COURT OF THE UNITED STATES
Before HILL, HENDERSON and

SMITH °°, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In this case, we review the order of th«
district court granting appcllee James Du-
pree Henry's petition for a writ of habeas
corpus. This panel previously decided and
affirmed this case sitting as the United
States Court of Appeals for the Fifth Cir-
cuit (Unit B), see Henry v. Wainwright, 661
F.2d 56 (5th Cir.1981) (Henry 1), and Wuain-
wright appealed to the Supreme Court.
The Supreme Court vacated and remanded
the case for further consideration in view of
Engle v. Isaac, 457 U.S. 1114, 102 S.Ct.
2922, 73 L.Ed.2d 1326 (1982), and, in Henry

nation.

- 3a -

HENRY v. WAINWRIGHT

993

Cite 00 721 F 26 990 (1983)

v. Wainwright, 686 F.2d 311 (5th Cir.1982)
(Henry II), we reinstated our previous
judgment. Wainwright appealed again to
the Supreme Court, which vacated and re-
manded the case again, this time for recon-
sideration in light of Barclay v. Florida, —
US. ——, 108 S.Ct. 3418, 77 LEd2d 1134
(1983). Upon reconsideration, we have de-
termined that the decision in Barclay dem-
onstrates that our previous decision was in
error. After considering the issues raised
by Henry on cross appeal not passed on in
our previous decisions, we conclude that the
district court properly denied relief as to
those issues. Therefore, we affirm the
judgment of the district court denying the
writ as to the additional issues and reverse
the judgment of the district court granting
relief on the Barclay issue.'

I ;

In Henry I, 661 F.2d at 56, we concluded
that it is Constitutional error for the sen-
tencing authority to consider nonstatutory
aggravating factors in determining whether
to impose the death penalty. In Barclay,
the Supreme Court clearly held that the
Constitution does not prohibit the sentenc-
ing judge from considering nonstatutory
aggravating circumstances in al! cases. 103
S.Ct. at 3427 (plurality opinion); 103 S.Ct
at 3437 (Stevens and Powell, JJ., concur-
ring). In that case, the trial judge found
valid statutory aggravating circumstances
but no mitigating circumstances. The Su-
preme Court held i: proper for the Florida
Supreme Court to conclude in such a case
that the reliance of the sentencing judge on
the nonstatutory aggravating circumstance
was harmless error. Jd. 103 S.Ct at 3428,
3433.

Henry contends that distinctions between
the present case and Barclay require that
we invalidate his death sentence. He first
argues that in Barclay and in Zant v. Ste-
phens, —- U.S. ——, 103 S.Ct 2733, 77
L.Ed_2d 235 (1983), the sentencing authority
considered evidence properly before it but

sions and we will not repeat them here.

erroneously concluded that the evidence
supported a finding of a statutory aggrs-
vating circumstance. Henry contends that
the trial judge in this case relied on inad-
missible evidence. Henry cites Ford v.
Strickland, 696 F 2d 804, 814 (11th Cir.1983)
(en banc), Antone v. Strickland, 706 F.2d
1534 (11th Cir.1983), Shriner v. Wainwright,
715 F.2d 1452 (11th Cir.1983), and Brooks v.
Francis, 716 F.2d 780 (11th Cir.1983) to sup-
port his contentions.

These cases do not support the result
advocated by Henry. Ford involved “con-
sideration of neither unconstitutional or
nonstatutory aggravating evidence,” 696
F.3d at 814, and Antone involved a similar
situation, 706 F.2d at 1539. In Brooks, the
jury (the sentencing authority in Georgia)
did not rely on a nonstatutory circum-
stance; the petitioncr challenged the tria!
court's instruction allowing the jury to
“consider all the evidence received through-
out this trial.” At 790. This court denied
relief on the basis of the Henry I/ decision,
686 F.2d 511, without citing Barclay cr Ste-
phens. And, in Shriner, we squarely reject-
ed a claim similar to Henry’s, relying direct-
ly on Barclay. 715 F.2d at 1458.

In Barclay, the Supreme Court stated
that the evidence supporting the finding of
the nonstatutory aggravating circumstance
was “properly introduced to prove that the
mitigating circumstance of the ubsence of a
criminal record did not exist.” 103 S.Ct. at
3427. The Court in Barclay did not rely
heavily on the coincidence that the evidence
was properly admissible under state law,
however. The Supreme Court also con-
sidered the sentencing review by the Flori-
da Supreme Court,? the existence of valid
Statutory aggravating circumstances, and
the absence of mitigating circumstances.
Indeed, Justice Stevens, concurring, stated
that “[tJhe Florida rule that statutury ag-
gravating factors must be exclusive affords
greater protection than the federal Consti-
tution requires.” Jd. 103 S.Ct. at 3432-33.

2. Henry does not contend that the review was
somehow inadequate in this case.

- #da-

)

994

{1} To accept Henry's argument would
create an anomaly: the sentencing authori-
ty could constitutionally consider nonstatu-
tory aggravating circumstances only if the
evidence supporting those circumstances
had validly been admitted on some other
ground. This result would contradict the
clear language in Barclay that “the Consti-
tution does not prohibit consideration at the
sentencing phase of information not direct-
ly related to either statutory aggravating
or mitigating factors, as long as that infor-
mation is relevant to the character of the
defendant or the circumstances of the
crime.” Jd. 103 S.Ct at 3433 (Stevens, J.,
concurring). Although the Court clearly
prohibited any evidence of aggravating acts
drawn from or based on constitutionally
protected conduct, see 103 S.Ct at 3427,
Justice Stevens’ comments indicate that
Henry overemphasizes the Court’s reliance
on the admissibility of the evidence at Kar-
clay's trial simply to show the absence of a
mitigating circumstance. In this case, the
nonstatutory aggravating circumstance re-
lied on by the judge was Henry's resisting
arrest and shooting a police officer as the
officer knelt on the ground begging not to
be shot again. Henry's actions clearly have
a material bearing on the character of the
defendant, and the actions are not constitu-
tionally protected conduct. This is enough
to render the evidence constitutionally “ad-
missible” under Barclay.

[2] Henry also argues that this case dif-
fers from Barelsy because the possibility
exists that the jury relied “solely on a non-
statutory aggravating factor.” 103 S.Ct at
3433 (Stevens, J., concurring) (emphasis in
original). Henry's judge instructed the
jury that they should consider all aggravat-
ing circumstances “not limited to” statutory
circumstances. The jury recommended by a
vote of 7-5 that Henry be sentenced to
death, and the trial judge sentenced Henry
3. In Barclay the jury voted 7-5 for life impris-

onment. 103 S.Ct at 3421.

of the death penalty; we cannot discern a rea-
son for invalidating the death sentence here

721 FEDERAL REPORTER, 24 SERIES

to death. It is impossible to determine
what evidence the Jury relied on in sentenc-
ing Henry to death. In Barclay, however,
Justice Stevens referred to a “death sen-
tence” resting “solely on 2 nonstatutory
.+. factor,” id; he did not directly? ad-
dress whether the jury as well as the judge
must specifically find a statutory aggravat-
ing factor to be present. In Florida, the
judge is the sentencing authority, and the
jury acts only in an advisory capacity, re-
turning a general verdict recommending
life or death. Both the judge and jury
heard substantial evidence of statutory ag-
gravating factors in this case, and the judge
specifically found statutory aggravating
factors to be present. This procedure pro-
vides us adequate assurance that Henry's
sentence docs not rest solely on a nonstatu-
tory factor.

{3} Next, Henry argues that the trial
judge improperly considered only statutory
mitigating circumstances;* however, the
record does not support Henry's contention.
Here the trial judge allowed the jury to
consider al] mitigating circumstances “in-
cluded but not limited to” statutory circum-
stances, and the judge specifically found
that as to “mitigating circumstances, there
are absolutely none.” In any event, Hen-
ry's attempt to distinguish Barclay in this
manner, in reliance on our decision in Goode
v. Wainwright, 704 F.2d 593, 612 (11th Cir.
1983), is now of doubtful merit. The Su-
preme Court recently reversed Goode.
Wainwright v. Goode, —- U.S. ——, 104
S.Ct. 378, 77 L.Ed.2d —— (1983).

{4} We must address one final question
in deciding the effect of Barclay on this
case. In Barclay, the Supreme Court relied
on the review conducted by the Florida
Supreme Court in refusing to invalidate
Barclay’s sentence. See 103 S.Ct at 3423.
In this case, although Henry presented the
nonstatutory aggravating circumstances is-

when the sale distinction is that a jury voted
for the death penalty

4. Henry raised this issue in his initial cross-ap-
peal as an independent ground of error. See

- 5a -

HENRY v. WAINWRIGHT
Cite as 721 F.24 990 (1983)

sue to the Florida Court, that Court did not
affirmatively pass on it. Henry I], 636 F.2d
at 311. Nevertheless, this affords no reason
for invalidating the sentence. In Barclay,
the Florida Cour: also “never discussed the
trial judge's specific findings concerning
Barclay.” Barclay, 103 S.Ct. at 3441 (Bren-
nan, J., dissenting); see generally Barclay
v. State, 343 So.2d 1266 (Pla.1977). In both
cases the Flerida Court simply conducted its
sentencing review and concluded that the
trial judge acted properly. We can find no
distinction on this ground between this case
and Barclay. Thus, we reverse the order of
the district court granting Henry the writ
of habeas corpus because of the trial judge's
reliance on nonstatutory aggravating fac-
tors.

ll

[5,6] On cross appeal, Henry first con-
tends that the district judge erred in find-
ing harmless the failure of the trial judge
to instruct the jury that aggravating cir-
cumstances must be found beyond a reason-
able doubt. For the failure to give the
instruction to be harmless, the evidence
must be so overwhelming that the omission
beyond a reasonable doubt did not contrib-
ute to the verdict. See, eg., Brooks v.
Francis, 716 F.2d 780 at 794 (11th Cir.1983).
The district judge accurately noted that the
evidence of the aggravating circumstances
(murder while committing robbery, espe-
cially benious and cruel murder, and pecuni-
ary gain) was overwhelming. The jury
never beard an instruction during the trial
on any standard of proof other than beyond
a reasonable doubt. And, in Flogida, the
judge, not the jury, imposes the final sen-
tence. We conclude that the judge’s failure
to repeat his charge to the jury on the

der; the jury returned a general verdict of
guilty. Henry therefore contenc- that, Le-
cause the jury failed specifically to find
that he intentionally killed the victim of the
murder, he cannot be constitutionally sen-
tenced to death. See Enmund v. Florida,
458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d
1140 (1982). We recently addressed this
type of claim in Ross v. Hopper, 716 F.2d
1528 (11th Cir.1983). Ross is particularly
helpful in resolving Henry's claim. —

In Ross, the petitioner also claimed that
he could not be sentenced to death on the
basis of a felony murder conviction, citing
Enmund. We noted that in Enmund the
evidence did not demonstrate that Enmund
participated in the killing. It appeared that
all Enmund had done was to drive the geta-
way car. Sec 102 S.Ct. at 3378. In Ros,
the evidence demonstrated that the peti-
tioner fired the fatal shot; we therefore
concluded that he could constitutionally be
sentenced to death even though he was not
charged with intent-to-kill murder. At
1533.

[7] The same is true in this case. Henry
bound and gagged his victim, tortured him,
and cut him with a razor blade. The victim
died by strangling on the gag Henry placed
in his mouth. Henry claims that he did not
intend that the victim die. He cannot ar-
gue, however, that he did not perform the
fetal act with intent at least to seriously
and wantonly harm the victim. He had no
accomplice. Thus, Enmund is no bar to the
death sentence here.

IV

{8] Henry next claims that he was de-
nied effective assistance of counsel at his
sentencing hearing. First, he notes that his
attorney did not object to the trial judge's
charge, which failed to instruct the jury
that aggravating circumstances must be
found beyond a reasonable doubt. We have ©
concluded that the failure of the judge to
give this instruction was harmless beyond a

quested it.

- 6a -

reasonable doubt. Sec supra § II. In
Washington v. Strickland, 693 F.2d 1243
(11th Cir.1982) (en banc), cert. granted, ——
U.S. ——, 103 S.Ct. 2451, 77 L.Ed.2d 1332
(1983), we set forth a two-part test for
ineffective assistance claims. The petition-
er must show both ineffective assistance
and prejudice. 693 F.2d at 1258. Here,
Henry was not prejudiced because the fail-
ure to give the instruction was harmless
beyond a reasonable doubt. We therefore
reject this claim.

(9,10) Henry also claims that his coun-
sel was ineffective because he failed to ob-
ject to the jury charge allowing considera-
tion of nonstatutory aggravating factors.
Although this instruction, under Barclay,
does not constitute constitutional error, see
supra § I, it was erroncous under state law.
Nevertheless, the failure to object did not
deprive Henry of his right to “reasonably
effective” counsel under the circumstances.
See Washington, 693 F.2d at 1250. The
Constitution does not mandate error-free
counsel. Given that the judge’s reliance on
the nonstatutory factor is constitutional un-
der Barclay, we think it would be anoma-
lous to hold the failure of Henry's counsel
to object to the charge to be unconstitution-
a] assistance.

Vv

{11,12) Henry next contends that vari-
ous constitutional deficiencies in his sen-
tencing proceeding rendered that proceed-
ing unreliable, standardless, and arbitrary.
See generally Godfrey v. Georgia, 446 U.S.
420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
First, Henry argues that reliance by the
trial ‘edge on the § (5d) aggravating cir-
cumstance, murder while committing rob-
bery, resulted.in the automatic imposition
of the death penalty in his case. This argu-
ment has no merit. The sentencing author-
ity clearly has discretion in deciding wheth-
er to :mpose the death penalty. See Bar-
clay, 103 S.Ct. at 3431 (Stevens, J., concur-
ring). It is certainly not unconstitutional
for the state of Florida, in constructing a
6 In this section of his brief, Henry also raised

721 FEDERAL REPORTER, 24 SERIES

death sentencing procedure, to consider
murders committed in the course of other
dangerous felonics to be reprehensible.
Nor, as Henry argues, does the use of the
underlying felony shift the burden of proof
to the defendant: the state must neverthe-
less prove the existence of aggravating cir-
cumstances. The Supreme Court has held
the Florida statute constitutional. See
Proffitt v. Florida, 428 U.S. 242, 96 S.Ct.
2960, 49 L.Ed.2d 913 (1976). Henry raises
no argument here that convinces us that
this case is nut controlled by Proffitt.

[13] Second, Henry argues that the trial
judge improperly regarded the aggravating
circumstances of murder in the commission
of a robbery and murder for pecuniary gain
as separate and distinct aggravating cir-
cumstances in violation of Provence v.
State, 337 So.2d 783 (Fla. 1976), éert. denied,
431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065
(1977). Henry's reading of Provence is cor-
rect as a matter of state law. We believe,
however, that the decision of the Supreme
Court in Barclay, — U.S. ——, 103 S.Ct.
3418, 77 L.Ed.2d 1134 (1983), controls our
resolution of this issue for the reasons set
forth in section 1, supra The trial judge
found no mitigating circumstances, and we
cannot conclude that the state-law error by
the trial judge raised the possibility that
the death sentence in this case was not
“imposed in a consistent rational manner.”
Td. 108 S.Ct. at 3429 (Stevens, J., concur-
ring). The record gives no indication that
the sentencing judge considered it impor-
tant that the same facts supported two
statutory provisions. We therefore reject
Henry’sEALS FILED

U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
SM 2 5 CSA
No. 80-5184 | oa
SPENCER D. MERCER
CLERK

———

JAMES ‘DUPREE HENRY,
‘ Petitioner-Appellee,
Cross Appellant,

versus

LOUIE i. WAINWRIGHT, Secretary, Dept. of Corrections,

Respondent-Appellant,
Cross~Appellee.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING AND SUGGESTION FOR KEHEARING EN BANC
(Opinion 12/13/83 , 11 Cir., 198, F.2d ).

Before HILL, HENDERSON and SMITH**, Circuit Judges.

PER CURIAM:

**Hon. Edward C. Smith, U. S. Circuit Judge for the Federal
Circuit, sitting by designation.

- lb «

ORDER RECALLING MANDATE AND
ORDER DENYING PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

The motion of JAMES DUPREE HENRY for recall of the
mandate issued upon our judgment and Opinion of December i3,
1983 is before us. The motion points Out that our mandate issued
with the opinion and was not held in this court in the usual
fashion (Rule 27(d), Rules of the United States Court of Appeals
for the Eleventh Circuit) for 21 days following the release of
the court's opinion and for 7 days following denial of a motion
for rehearing. The premises considered, it is ORDERED that the
mandate be recalled and remain in this court as if it had not
issued. The issuance of the mandate is not Stayed. In view of
the order in Paragraph II, below, it is expected that it wil]

issue seven (7) days after the date of this order.
Eas

The Petition for Rehearing on behalf of JAMES DUi REE

HENRY is DENIED and no member of this panel nor other Judge in

o 2b «

regular active service on the Court having requested that the
Court be polled on rehearing en banc (Rule 35, Federal Rules of
Appellate Procedure; Eleventh Circuit Rule 26), the Suggestion

for Rehearing En Banc is DENIED.

EN ERED/FOR THE AKG.

nana States Circuit Judge

J

= 3b -

APPENDIX ¢€

APPENDIX C

STATUTORY PROVISIONS INVOLVED

Florida Statutes (1973)
782.04 Murder.—

(1a) The unlawful killing of a human being, when perpe-
trated from a premeditated design to effect the death of the
person killed or any human being, or when committed by a
person engaged in the perpetration of. or in the attempt to
perpetrate, any arson, rape, robbery, burglary, kidnapping,
aircraft piracy, or the unlawful throwing, placing, or discharg-
ing of a destructive device or bomb, or which resulted from the
unlawful distribution of heroin by a person over the age of
seventeen years when such drug is proven to be the proximate
cause of the death of the user, shall be murder in the first
degree and shall constitute a capital felony, punishable as
provided in § 775.082.

(b) Inall cases under this section, the procedure set forthin
§ 921.141 shall be followed in order to determine sentence of
death or life imprisonment.

(2) When perpetrated by any act imminently dangerous to
another and evincing a depraved mind regardless of human
life, although without any premeditated design to effect the
death of any particular individual, or when committed in the
perpetration of, or in the attempt to perpetrate, any arson,
rape, robbery, burglary, kidnapping, aircraft piracy, or the
unlawful throwing, placing, or discharging of a destructive
device or bomb, except as provided in subsection (1), it shall be
murder in the ual degree and shall constitute a felony of the
first degree, punishable by imprisonment in the state prison
for life or for such term of years as may be determined by the
court.

(3) When perpetrated without any design to effect death,
by a person engaged in the perpetration of, or in the attempt to
perpetrate, any felony other than arson, rape, robbery,

burglary, kidnapping, aircraft piracy, or the unlawful throw-
ing, placing, or discharging of a destructive device or bomb, it
shall be murder in the third degree and shall constitute a felony
of the second degree, punishable as provided in § 775.082,
§ 775.083, or § 775.084.

921.141 Sentence of death or life imprisonment for
capital felonies; further proceedings to determine
sentence.—

(1) SEPARATE PROCEEDINGS ON ISSUE OF
PENALTY.—Upon conviction or adjudication of guilt of de-
fendant of a capital felony, the court shall conduct a separate
sentencing proceeding to determine whether the defendant
should be sentenced to death or life impriscnment as autho-
rized by § 775.082. The proceeding shal! be conducted by the
trial judge before the trial jury as soon as practicable. If the
trial jury has been waived or if the defendant pleaded guilty,
the sentencing proceeding shall be conducted before a jury
impaneled for that purpose unless waived by the defendant. In
the proceeding, evidence may be presented as to any matter
that the court deems relevant to sentence, and shall include
matters relating to any of the aggravating or mitigating cir-
cumstances enumerated in subsections (6) and (7) of this sec-
tion, Any such evidence which the court deems to have proba-
tive value may be received, regardless of its admissibility
under the exclusionary rules of evidence, provided the defend-
ant is accorded a fair opportunity to rebut any hearsay state-
ments. However, this subsection shall not be construed to
authorize the introduction of any evidence secured in violation
of the constitutions of the United States or of the State of
Florida. The state and the defendant or his counse! shall be
permitted to present argument for or against sentence of
death.

(2) ADVISORY SENTENCE BY THE JURY.—After
hearing all the evidence, the jury shall deliberate and render
an advisory sentence to the court, based upon the following
matters:

(a) Whether sufficient aggravating circumstances exist as
enumerated in subsection (6);

(bo) Whether sufficient mitigating circumstances exist as
enumerated in subsection (7), which outweigh the aggravating
circumstances found to exist; and

(c) Based on these considerations, whether the defendant
should be sentenced to life *[imprisonment] or death.

(3) FINDINGS IN SUPPORT OF SENTENCE OF
DEATH.—Notwithstanding the recommendation of a major-
ity of the jury, the court after weighing the aggravating and
mitigating circumstances shall enter a sentence of life
imprisonment or death, but if the court imposes a sentence of
death, it shall set forth in writing its findings upon which the
sentence of death is based as to the facts:

(a) That sufficient aggravating circumstances exist as
enumerated in subsection (6), and

(b) That there are insufficient mitigating circumstances, as
enumerated in subsection (7), to outweigh the aggravating
circumstances. In each case in which the court imposes the
death sentence, the determination of the court shall be sup-
ported by specific written findings of fact based upon the
circumstances in subsections (6) and (7) and upon the records of
the trial and the sentencing proceedings. If the court does not
make the findings requiring the death sentence, the court shall
impose sentence of life imprisonment in accordance with
§ 775.082.

(4) REVIEWOF JUDGMENT ANDSENTENCE.—The
judgment of conviction and sentence of death shall be subject
to automatic review by the Supreme Court of Florida within 60
days after certification by the sentencing court of the entire
record unless the time is extended for an additional period not
to exceed 30 days by the supreme court for good cause shown.
Such review by the supreme court shall have priority over all
other cases and stiall be heard in accordance with rules prom-
ulgated by the supreme court.

(5) AGGRAVATING CIRCUMSTANCES.—
Aggravating circumstances shall be limited to the following:

(a) The capital felony was committed by a person under
sentence of imprisonment.

(b) The defendant was previously convicted of another
capital felony or of a felony involving the use or threat of
violence to the person.

(c) The defendant knowingly created a great risk of death
to many persons.

(d) The capital felony was committed while the defendant
was engaged, or was an accomplice, in the commission of, or an
attempt to commit, or flight after committing or attempting to
commit, any robbery, rape, arson, burglary, kidnapping, or
aircraft piracy or the unlawful throwing, placing, or discharg-
ing of a destructive device or bomb.

(e) The capital felony was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape
from custody. ’

(f) The capital felony was committed for pecuniary gain.
(g) The capital felony was committed to disrupt or hinder

the lawful exercise of any governmental function or the
enforcement of laws.

(h) The capital felony was especially heinous, atrocious, or
cruel.

(6) MITIGATING CIRCUMSTANCES.—Mitigating cir-
cumstances shall be the following:

(a) The defendant has no significant history of prior crimi-
nal activity.

(b) The capital felony was committed while the defendant
was under the influence of extreme mental or emotional dis-
turbance.

(c) The victim was a participant in the defendant's conduct
or consented to the act.

(d) The defendant was an accomplice in the capital felony
committed by another person and his participation was rela-
tively minor.

(e) The defendant acted under extreme duress or under
the substantial domination of another person.

(f) The capacity of the defendant to appreciate the crimi-
nality of his conduct or to conform his conduct to the require-
ments of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

— |

RECEIVED |

No. 73-G430
APR 2» 1084
esas OFFICE OF THE = |
SUPREME COURT OF THE UNITED STATES SUPREME courT, U.S.

OCTOBER TERM, 1983

See ett ee SS SSS StS SSS SSS SSS SSS SS SS SSS SSS SH SS SS Sess ssssesssesssrsresz=e
JAMES DUPREE HENRY,
Petitioner,
vs.

LOUIE L. WAINWRIGHT, etc.,
Respondents.

See eee eee ee See See Se SS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS Sse ssTseee=

AFFIDAVIT IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS

I, JAMES DUPREE HENRY, being first duly sworn, depose and
say that I am the petitioner in the above entitled case; that in
support of my motion to proceed without being required to prepay
fees, costs or give security therefor, I state that because of my
poverty I am unable to pay the costs of said proceeding or to
give security therefor; that I believe I am entitled to relief.

I further swear that the responses which I have made to
questions and instructions below are true.

1. Are you presently employed? Yes [ ] No WN]
a. If the answer is "Yes", state the amount of your salary

or wages per month, and give name and address of your employer.

b. If the answer is "No", state the date of last employment
and the amount of the salary and wages per month which you

received.

2. Have you received within the past twelve months any money
from any of the following sources?

a. Business, profession or from self employment? Yes [ ]
no WN)

b. Rent payments, interest or dividends? Yes [ ] No ™

c. Pensions, annuities or life insurance payments? Yes [ |

No (™

ad. Gifts or inheritance? yes [ } No WN]
e. Any other sources? Yes [ ] No N]
If the answer to any of the above is “yes", describe each
source Of money and state the amount received from each during

the past twelve months.

3. Do you own cash, or do you have money in a checking or saving
account? Yes [ ] No W] (Include any funds in prison accounts)
If answer is "yes", state the total value of the items

owned.

4. Do you own any real estate, stocks, bonds, automobiles, or
other valuable property (excluding ordinary household furnishings
and clothing)? Yes [ } No WN]

If the answer is "yes" describe the property and state its

approximate value.

5. List the persons who are dependent upon your Support, state
your relationship to those persons and indicate how much you

contribute toward their support.

I understand that a false statement to any questions in this
affidavit will subject me to penalties for perjury.
"I declare under penalty of perjury that

the foregoing is true and correct."

STATE OF FLORIDA )
COUNTY OF BRADFORD )
JAMES DUPREE HENRY being first duly sworn under oath,

presents that he has read and subscribed to the above and states

i

that the inf»vrmation therein is true and rrect.

My Commission Expires:

No. 93-6430

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

See eee eee SEBS SSS SSS SSS SSS SS SSS SSS SS SSS SSS SSS SS SS SS SSS SSS SST STS TE
JAMES DUPREE HENRY,
Petitioner,
V6.

LOUIE L. WAINWRIGHT, etc.,
Respondents.

ee eee see ee ee see SSeS SSS SSS SSS SSH SSS SSS SSS Ss SSS SS SSS ese SSS SSS ssss

AFFIDAVIT IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS

I, JAMES DUPREE HENRY, being first duly sworn, depose and
say that I am the petitioner in the above entitled case; that in
support of my motion to proceed without being required to prepay
fees, costs or give security therefor, I state that because of my
poverty I am unable to pay the costs of said proceeding or to
give security therefor; that I believe I am entitled to relief.

I further swear that the respenses which I have made to
questions and instructions below are true.

1. Are you presently employed? Yes [ ] No WN]
a. If the answer is "Yes", state the amount of your salary

or wages per month, and give name and address of your employer.

b. If the answer is "No", state the date of last employment
and the amount of the salary and wages per month which you

received.

2. Have you received within the past twelve months any money
from any of the following sources?

a. Business, profession or from self employment? Yes { ]
no

b. Rent payments, interest or dividends? Yes [ ] No ™

c. Pensions, annuities or life insurance payments? Yes [ ]

no /™

d. Gifts or inheritance? yes [ ] No N]
e. Any other sources? Yes [ ] No WN]
If the answer to any of the above is "yes", describe each
source of money and state the amount received from each during

the past twelve months.

3. Do you own cash, or do you have money in a checking or saving
account? Yes [ ] No WW] (Include any funds in prison accounts)
If answer is "yes", state the total value of the items

owned,

4. Do you own any real estate, stocks, bonds, automobiles, or
other valuable property (excluding ordinary household furnishings
and clothing)? yes [ ] No ™]

If the answer is "yes" describe the property and state its

approximate value.

5. List the persons who are dependent upon your support, state
your relationship to those persons and indicate how much you

contribute toward their support.

I understand that a false statement to any questions in this
affidavit will subject me to penalties for perjury.
"I declare under penalty of perjury that

the foregoing is true and correct."

STATE OF FLORIDA )
COUNTY OF BRADFORD )
JAMES DUPREE HENRY being first duly sworn under oath,

presents that he has read and subscribed to the above and states

that the information therein is true and a
ature o oe
to before me this YS i of f. 1984.

By Commission Expires Scot. 25, 1967

My Commission Expires:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1785%3A1. Public record. Not legal advice.