          Supreme Court of Florida
                                  ____________

                                  No. SC14-1053
                                  ____________

                           JOHN RUTHELL HENRY,
                                 Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                               [June 12, 2014]
                            CORRECTED OPINION

PER CURIAM.

      John Ruthell Henry is a prisoner under sentence of death for whom a warrant

has been signed setting execution for June 18, 2014. Henry appeals from the

dismissal of his Motion for Determination of Intellectual Disability as a Bar to

Execution. This Court has jurisdiction under article V, section 3(b)(1), Florida

Constitution. For the reasons explained below, we affirm the postconviction

court’s order dismissing Henry’s motion.

                               I. BACKGROUND

      Henry was convicted of the 1985 first-degree murder of his second wife,

Suzanne Henry, in Pasco County. On Henry’s first direct appeal, this Court
reversed and remanded Henry’s case for a new trial. Henry v. State, 574 So. 2d 73

(Fla. 1991). The evidence showed that shortly before Christmas in 1985, Henry

went to his estranged wife’s home in Pasco County to discuss Christmas presents

for her son Eugene Christian. Id. at 74. They argued, and Henry stabbed Suzanne

Henry in the neck thirteen times, killing her. Henry v. State, 649 So. 2d 1366,

1369 (Fla. 1994). On retrial in 1991, Henry was again convicted of first-degree

murder, and the jury unanimously recommended a sentence of death. Id. at 1367.

The trial court sentenced him to death, finding two aggravating factors: (1) Henry

had a prior violent felony conviction (Henry murdered his first wife and pleaded

guilty to second-degree murder), and (2) the murder was heinous, atrocious, or

cruel (HAC). Id. at n.2. The trial court found no mitigation. Id. 1

      On direct appeal following his retrial, Henry raised the following issues: (1)

the trial court erred in admitting testimony regarding the murder of Eugene

Christian; (2) the trial court erred by admitting the hearsay testimony of an

unavailable witness during the penalty phase related to the murder of his first wife;

(3) the trial court erred by admitting testimony regarding the autopsy report from

       1. In a separate trial, Henry was also convicted and sentenced to death for
the murder of Suzanne Henry’s five-year-old son Eugene Christian in Hillsborough
County. Henry v. State, 574 So. 2d 66 (Fla. 1991) (reversing and remanding for
new trial for murder of stepson Eugene Christian). On retrial, Henry was again
convicted and sentenced to death for the murder of Eugene Christian, and this
Court affirmed. Henry v. State, 649 So. 2d 1361 (Fla. 1994). The death warrant in
this case is for the murder of Suzanne Henry.


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his prior murder conviction for killing his first wife to establish the prior violent

felony aggravator; (4) the trial court erred by instructing on the murder-in-the-

course-of-a-felony aggravator because the court did not find the aggravator; (5) the

trial court failed to properly consider all mitigating evidence presented; (6) the

HAC aggravator was not supported by the evidence; and (7) the death sentence

was disproportionate. Id. at 1367-70. This Court affirmed Henry’s conviction and

sentence, concluding that the claims either lacked merit or—despite their merit—

constituted harmless error. Id.

      In March 2001, Henry filed an amended initial motion for postconviction

relief. An evidentiary hearing was held in November 2001, after which the

postconviction court denied relief. Henry appealed, raising the following issues:

retrial counsel provided constitutionally ineffective assistance at trial by presenting

the defenses of self-defense and diminished capacity and for failing to present a

voluntary intoxication defense; counsel was ineffective for failing to present

mental health experts at retrial; and Florida’s death penalty is unconstitutional

under Ring v. Arizona, 536 U.S. 584 (2002). Henry v. State, 862 So. 2d 679 (Fla.

2003). This Court affirmed the postconviction court’s order denying

postconviction relief. Id. at 680.

      In 2004, Henry filed a petition for a writ of habeas corpus in the United

States District Court for the Middle District of Florida, and subsequently appealed


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the denial of his claim that counsel was ineffective for failing to present mental

health experts to testify in the retrial penalty phase. Henry v. Sec’y, Dep’t of

Corr., 490 F.3d 835, 836 (11th Cir. 2007). On appeal, the Eleventh Circuit Court

of Appeals agreed with this Court’s determination that trial counsel’s strategy was

reasonable, and Henry could not demonstrate prejudice. Id. at 839. Accordingly,

the court affirmed the denial of Henry’s habeas petition. Id.

      On May 2, 2014, Governor Rick Scott signed a death warrant for John

Ruthell Henry with an execution date of June 18, 2014. At a hearing in the circuit

court, defense counsel, with Henry’s approval, waived judicial postconviction

proceedings and announced the intent to pursue a determination of Henry’s

competency under section 922.07, Florida Statutes (2013). Under this statute, the

Governor appoints three experts to examine the defendant to determine “whether

[the convicted person] understands the nature and effect of the death penalty and

why it is to be imposed upon him or her.” § 922.07(1), Fla. Stat. (2013).

Subsequently, postconviction counsel formally requested the competency

proceeding, and the Governor appointed three experts to examine Henry. After the

examination, the experts reported their opinion on May 16, 2014, that—within a

reasonable degree of medical certainty—Henry does not suffer from a psychiatric

illness or intellectual disability and understands the nature and effect of the death

penalty and why the sentence had been imposed on him.


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      Subsequently, Henry filed a Motion for Determination of Intellectual

Disability as a Bar to Execution. The circuit court dismissed the motion as

untimely, and Henry appealed the dismissal to this Court.

                                  II. ANALYSIS

      In this appeal, Henry asserts that he is entitled to an evaluation to determine

whether he is intellectually disabled. See § 921.137, Fla. Stat. (2013); Fla. R.

Crim. P. 3.203. He bases his claim on the Supreme Court’s recent decision in Hall

v. Florida, 134 S. Ct. 1986 (2014), and his performance in 1987 on the Weschler

Adult Intelligence Scale (WAIS) that demonstrated that he had an IQ of 78.

Accordingly, Henry argues that the postconviction court erred in dismissing his

claim of intellectual disability. We disagree.

      Henry is not entitled to an evidentiary hearing to determine if he is

intellectually disabled. Section 921.137(1) provides that intellectual disability

means “significantly subaverage general intellectual functioning, existing

concurrently with deficits in adaptive behavior and manifested during the period

from conception to age 18.” Beyond Henry’s assertion of a single test score, he

has not alleged any deficits in adaptive functioning or onset prior to age 18.

Indeed, having examined the record in this cause, we agree with the State that not

one doctor over all the years of litigation has ever opined that Henry was mentally

retarded or intellectually disabled. Moreover, three doctors recently evaluated


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Henry to determine his competency under section 922.07 and concluded as

follows:

      Mr. Henry was fully oriented and his memory and concentration were
      intact. His clinical presentation during the evaluation was consistent
      with intellectual functioning at or above what would be predicted
      based on his prior IQ test result of 78 (7th percentile). For instance,
      he was able to discuss the legal process accurately in reasonable
      depth. Moreover, he correctly serially subtracted seven from 100 on
      four of five steps (100-93-79-73-56).

      Mr. Henry was administered the Mini-Mental State Examination-2, a
      neuropsychiatric test used to assess for cognitive impairment. It
      covers the areas of orientation, attention, calculation ability, recall
      (recent memory), naming, repetition, comprehension, reading, writing,
      and visual-spatial skills. Mr. Henry scored a 25/30 (T score-51; 54th
      percentile), in the average range per age group and educational level
      norms.

      The nature and effect of the death penalty and why it is to be imposed
      on him was discussed with Mr. Henry. He communicated that he had
      been tried for and convicted of first degree murder and his sentence
      was the death penalty. Additionally, he noted that his victims were
      his wife and stepson. He provided the general facts surrounding their
      deaths. In his words, the execution is carried out by “lethal injection,”
      “a shot,” and is to occur on June 18th at 6:00 p.m.
      In summary, based on our clinical interview, review of records, and
      interviews with two correctional officers, it is our opinion with
      reasonable medical certainty that: (1) Mr. Henry does not suffer from
      any DSM-5 psychiatric illness or intellectual disability (formerly
      referred to as mental retardation in DSM-IV), and (2) understands the
      nature and effect of the death penalty and why it is to be imposed on
      him.
Letter from Dr. Wade C. Myers, M.D., Dr. Donald Taylor, M.D., and Tonia

Werner, M.D., to Rick Scott, Governor of Florida (dated May 16, 2014) (Henry

mental competency determination). Although this evaluation was for mental

                                        -6-
competency—not intellectual disability—the observations and conclusions further

support our determination that Henry has not established any facts that would

entitle him to relief under Hall.

      Finally, we consider that, rather than showing deficits in adaptive

functioning, the record demonstrates the opposite. As the State points out in its

Answer Brief, the record demonstrates that Henry engaged in typical, adult

activities. Henry was able to drive a car, develop personal relationships,

participate in financial transactions, discuss adult concepts, and engage in goal-

directed behavior. In addition, his pro se pleadings and his oral advocacy further

refute any claim that he has concurrent deficits in adaptive functioning or onset

before age 18. They demonstrate Henry’s effective communication skills, both

oral and written, and his understanding of the law. Answer Brief at 24. In its

Answer Brief, at 9-10, the State provides an example of Henry’s pro se advocacy

at his first trial, when he moved for appointment of new counsel, as follows:

      MR. HENRY: Good morning. Yeah, I would like to bring it to the
      Court’s attention that as of this moment I feel I am not properly being
      represented and I wish to ask the Court to remove Mr. Focht from
      being my attorney and I would like to be, if it’s possible, to be
      recommended to another attorney because I feel that there’s things
      that’s not being brought to the Court’s attention concerning me that
      he’s not bringing up, going into details concerning witnesses in my
      behalf. Some of the witnesses have not brought forward that I felt that
      would have came forward if it had been brought to their attention.
            Also, there’s things that haven’t been brought up that I have
      requested my attorney to bring up that he have failed to bring up and I


                                        -7-
       feel that, also, in this case, that it being partiality shown towards the
       victim. My main concern is that myself and Mr. Focht, the things that
       I have requested of him to bring up and he just haven’t. And I just
       feel like I’m not being properly represented.

       In light of the foregoing, we affirm the dismissal of Henry’s claim on the

basis that Henry has not demonstrated a facially sufficient claim of intellectual

disability.

       No motion for rehearing will be entertained by this Court. The mandate

shall issue immediately.

       It is so ordered.

POLSTON, C.J., and PARIENTE, CANADY, LABARGA, and PERRY, JJ.,
concur.
LEWIS, J., concurs in result.
QUINCE, J., recused.

An Appeal from the Circuit Court in and for Pasco County,
     Pat Edward Siracusa, Jr., Judge - Case No. 1985-CF-2685

Baya Harrison, III, Monticello, Florida,

       for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Candance M. Sabella,
Chief-Assistant Attorney General, Capital Appeals Bureau Chief, and Carol M.
Dittmar, Senior Assistant Attorney General, Tampa, Florida,

       for Appellee




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