New evidences in Richard Henyard

B. The Evidence That Entitles Mr. Henyard to Relief

In his August 4, 2008 motion for relief, Mr. Henyard submitted an affidavit
executed by Jason Nawara on July 24, 2008. PC-R Vol. II at 304-05. Mr. Nawara,
who is serving a sentence at Jefferson Correctional Institution, remains available to
testify to the substance of his statements, which provide that: In 1993, Mr. Nawara,
who was then fourteen years old, was arrested for first degree murder. While

awaiting trial, he was housed in the Lake County Jail with Mr. Henyard’s co-
defendant, Alfonza Smalls, who was also fourteen years old and awaiting trial for
his role in the case at hand. Mr. Nawara states in the affidavit that during the
fourteen months that they lived together in the same quad, he heard Mr. Smalls
state in a group setting on several occasions, “I’m a killa, you just a car thief” and
“I’ve killed before and I’ll kill again.” According to Mr. Nawara, he could tell that
Mr. Smalls was “dead serious” when he made these statements. Furthermore, Mr.
Nawara states that Mr. Smalls never denied killing the victims in the instant case,
nor did he say or insinuate that Mr. Henyard killed the victims.

The trial court summarily denied relief in an order dated August 14, 2008.
PC-R Vol. III at 535-53. Although the trial court did not directly address the first
prong of Jones, it found that, “Assuming that the defense has met its burden of
showing the evidence was unknown at the time of trial and could not have been
known with the use of due diligence under the first prong of Jones, Mr. Henyard
has not demonstrated that he could succeed on the second prong.” PC-R Vol. III at
541. Because the trial court did not grant Mr. Henyard an evidentiary hearing on
this claim, the Court must accept all allegations in the motion as true, including
Mr. Nawara’s affidavit, to the extent that they are not refuted by the record. See
Hodges, 885 So. 2d at 335.

The court further erroneously found in its order that the statements made by
Mr. Smalls to Mr. Nawara are hearsay statements that would be inadmissible at a
penalty phase trial. PC-R Vol. III at 542. Fla. R. Crim. P. 921.141(1) states that in
a penalty phase trial:

[E]vidence may be presented as to any matter that the
court deems relevant to the nature of the crime and the
character of the defendant and shall include matters
related to any of the aggravating or mitigating
circumstances enumerated in subsections (5) and (6).
Any such evidence which the court deems to have
probative value may be received, regardless of its
admissibility under the exclusionary rules of evidence,
provided the defendant is accorded a fair opportunity to
rebut any hearsay statements (emphasis added).

Even if Mr. Nawara’s testimony regarding Mr. Smalls’ statements does not fall
under any hearsay exception, his statements would be admissible at a penalty phase
trial. Moreover, the Rules of Evidence 90.804 (1) and (2)(c) defines the
parameters for the introduction of statements by witnesses who themselves are
unavailable to testify. In this case, the defense could have called Alfonzo Smalls
who would have pled his 5th Amendment protection against self-incrimination. At
this time, the Court would have declared Mr. Smalls unavailable as a witness
which would have allowed the defense to call Jason Nawara to introduce the
statement of Mr. Smalls. See Perry v. State, 675 So.2d 976 (Fla. 4th DCA 1996);

Brinson v. State, 382 So.2d 322 (Fla. 2nd DCA 1979).

Additionally, the testimony of Mr. Nawara that Mr. Smalls stated on numerous
occasions that he was a killer would establish statutory mitigation that Mr. Smalls
is more culpable than Mr. Henyard and/or that Mr. Henyard’s involvement was
relatively minor in comparison to Mr. Smalls. Even if Mr. Smalls is not found to
be the more culpable party, the evidence could have been presented as nonstatutory
mitigation to establish that Mr. Henyard was not the actual person who shot
Jasmine and Jamilya.

Applying Jones to the case at hand, Mr. Nawara’s testimony meets the first
prong of the test for newly discovered evidence because it was not known to the
trial court or defendant’s counsel and it could not have been known by the
defendant or counsel by the use of due diligence. Mr. Henyard’s counsel was not
aware that Mr. Nawara might have information concerning Mr. Henyard’s case
until recently, when CCRC found Mr. Nawara’s name in a transcript of a jailhouse
interrogation of a juvenile by the name of Jimmy Kennedy. PC-R Vol. III at 495.
Assistant State Attorney William Gross conducted the interrogation on March 22,
1995. PC-R Vol. III at 531. In fact, the transcript further reveals that the State
questioned Mr. Kennedy regarding Mr. Henyard’s and Mr. Smalls’ pending
criminal case. PC-R Vol. III at 531. By the State’s own admission, the transcript

is “real hard to read.” PC-R Vol. III at 531. Reading Mr. Nawara’s name on the
transcript proved even more difficult, as it appears that at one time a highlighter
was used on the document, which had the effect of blocking out a lot of the names
on the copy. PC-R Vol. III at 495. The transcript in question was not provided in
discovery to Mr. Henyard’s trial counsel, and the State did not reveal Mr.
Kennedy’s name in its discovery response. Therefore, this evidence satisfies the
first prong of Jones.

The trial court also erred in its finding that the second prong of Jones is not
met because “[i]n no reasonable interpretation of the phrase could Mr. Henyard
ever be considered a ‘relatively minor participant’ in these capital felonies.” PC-R
Vol. III at 541. Although Mr. Henyard confessed to raping and shooting Ms.
Lewis and being present when Jasmine and Jamilya were shot, he continuously
denied that he shot the girls, Henyard v. State, 689 So.2d 239 (Fla. 1997), unlike
Mr. Smalls, who, while his case was still pending, bragged that he killed before
and he would kill again. Likewise, defense counsel argued at trial that although
Mr. Henyard was involved in the crime, it was Mr. Smalls and not Mr. Henyard
who shot Jasmine and Jamilya. ROA at 1106-07. Mr. Nawara’s testimony
supports Mr. Henyard’s statement and defense counsel’s argument at trial that Mr.
Henyard did not shoot the girls.

A statutory mitigating circumstance under Fla. Stat. 921.141(d) is that “[t]he
defendant was an accomplice in the capital felony committed by another person
and his or her participation was relatively minor.” The fact that it was Mr. Smalls
and not Mr. Henyard who shot Jasmine and Jamilya mitigates Mr. Henyard’s
culpability and establishes an additional statutory mitigating factor under Fla. Stat.
921.141(d), which was not established at trial. Additionally, Mr. Smalls was the
one who accosted Mrs. Lewis and her children at the Winn Dixie as they were
leaving. Mr. Smalls called for Mr. Henyard to come to the car and drive. And it
was Mr. Smalls who bragged to others in the detention center that he was a
“killer.” Mr. Smalls who is the more culpable in the murders of Jasmine and
Jimilya received a life sentence because of his age; however, Mr. Henyard received
a death sentence because at the time of the offense he was six months over the age
requirement for being a juvenile. However, the mitigation at trial established
Henyard’s emotional maturity between ten and thirteen years of age, which this
court specifically found to be age thirteen, which is vastly different than his
eighteen years of age at the time of the crime. When one weighs this evidence
which would have established a valid mitigator, and the mitigators established at
trial against the aggravating circumstances, the jury which was clearly at odds
when they changed their vote three times (ROA at 2557), likely would have

recommended a life sentence for Mr. Henyard.