EDDIE WAYNE DAVIS v. STATE OF FLORIDA
No. SC14-1178
Supreme Court of Florida
July 7, 2014
Eddie Wayne Davis, a prisoner under sentence of death for whom a death warrant has been signed, appeals the circuit court‘s denial of his successive motion for postconviction relief, which was filed pursuant to
BACKGROUND
This Court affirmed Davis’ convictions and death sentence on direct appeal. Id. at 1194. Davis subsequently filed a motion for postconviction relief, which the circuit court denied following an evidentiary hearing. On appeal, this Court affirmed the circuit court‘s denial of postconviction relief and denied Davis’ accompanying petition for a writ of habeas corpus. Davis v. State, 875 So. 2d 359, 374 (Fla. 2003). Additionally, Davis sought habeas corpus relief in the federal courts, which was also denied. Davis v. McNeil, No. 8:04-cv-2549-T-27MAP, 2009 WL 860628, at *44 (M.D. Fla. Mar. 30, 2009). Following the federal district court‘s denial of his petition for a writ of habeas corpus, Davis sought a certificate of appealability, which was subsequently denied by the Eleventh Circuit Court of Appeals. Davis v. Sec’y Dep‘t of Corr., No. 09-11907-P (11th Cir. Sept. 8, 2009).
Davis appealed the circuit court‘s order, arguing that the circuit court erred in summarily denying his three claims, and also filed a motion for stay of execution. Along with his motion for stay of execution, Davis attached an
In addition to his claim on appeal regarding the circuit court‘s denial of his as-applied challenge to Florida‘s lethal injection protocol, Davis also asserts that it was error for the circuit court to allow the State‘s expert, Dr. Roswell Lee Evans, to render an expert opinion regarding Davis’ as-applied challenge. Further, Davis
ANALYSIS
Before this Court, Davis argues that the circuit court erred in denying his as-applied challenge to Florida‘s lethal injection protocol, and that the circuit court erred in summarily denying his remaining two claims: that he is not eligible for the death penalty because, although age twenty-five at the time of the murder, he “was the functional equivalent of a child” and that his constitutional rights were violated during the clemency proceedings. We address each claim in turn.
As-Applied Challenge to Florida‘s Lethal Injection Protocol
In his first issue on appeal, Davis argues that the circuit court erred in denying his as-applied challenge to Florida‘s lethal injection protocol. Davis contends that because he allegedly suffers from a medical condition called porphyria, the use of midazolam hydrochloride as the first drug of Florida‘s lethal injection protocol, as applied to him, is unconstitutional. “[M]ixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.”
As this Court has repeatedly recognized, “in order to prevail on an Eighth Amendment challenge, a claimant must show that ‘the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.‘” Howell, 133 So. 3d at 521 (quoting Pardo v. State, 108 So. 3d 558, 562 (Fla. 2012)). “In other words, ‘there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.‘” Id. (quoting Pardo, 108 So. 3d at 562). “This heavy burden is borne by the defendant—not the State.” Id.
As an initial matter, Davis contends that it was error for the circuit court to allow the State‘s expert, Dr. Evans, to testify with respect to Davis’ as-applied challenge to Florida‘s lethal injection protocol. Specifically, Davis asserts that because Dr. Evans is not an anesthesiologist and has no experience treating patients with porphyria or in administering midazolam, his testimony on Davis’ as-applied challenge was pure speculation.
With respect to when the introduction of expert testimony is proper,
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
This Court has previously stated that, “[t]he qualification of a person as an expert is within the sound discretion of the trial judge.” Penalver v. State, 926 So. 2d 1118, 1134 (Fla. 2006). Further, a trial court “has broad discretion in determining the range of the subjects on which an expert can testify, and the trial judge‘s ruling will be upheld absent a clear error.” Id.
The record indicates that Dr. Evans’ educational background, academic experience, and clinical experience were presented prior to his testimony. Although defense counsel objected to Dr. Evans being called as an expert in pharmacology, the circuit court overruled defense counsel‘s objection after allowing the defense to undertake voir dire and hearing additional testimony regarding Dr. Evans’ qualifications. The record demonstrates that Dr. Evans’ background along with his review of pertinent scientific literature allowed him to assist the finder of fact in addressing Davis’ as-applied challenge to Florida‘s lethal injection protocol. Accordingly, we conclude that it was not error for the circuit court to allow Dr. Evans to testify as an expert in this case with respect to Davis’
At the June 30, 2014, hearing, the circuit court assumed, for purposes of this claim, that Davis suffers from the medical condition alleged in Dr. Zivot‘s affidavit, even though no finding was made to this effect. In support of his claim, Davis called Dr. Zivot, the Medical Director of the Cardiothoracic Intensive Care Unit at Emory University Hospital and a faculty member of the Department of Anesthesiology and Surgery at Emory University School of Medicine. The circuit court summarized Dr. Zivot‘s testimony as follows: “Dr. Zivot testified that, in his opinion, the injection of 500 mg of midazolam will cause an increased accumulation of porphyrin in Mr. Davis’ tissues and the possible acute onset of porphyria symptoms including abdominal pain, tachycardia, high blood pressure, nausea, possible vomiting and resulting pain from those symptoms.”
In response, the State called Dr. Evans, a doctor of pharmacology who is a dean and professor at the Harrison School of Pharmacy at Auburn University. The circuit court summarized Dr. Evans’ testimony as follows:
Dr. Evans testified that the injection of midazolam will cause the Defendant to go into a state of unconsciousness within the time it takes for a person to count to ten and then backwards to zero. A person injected with 500 mg of midazolam will be totally unconscious within two to three minutes and in a comatose state soon thereafter. Dr. Zivot agreed that the person injected with the large dose [of] midazolam will be unconscious within two to three minutes.
After considering this testimony and argument from the parties, the circuit court denied Davis’ as-applied challenge, rejecting the claim that Davis’ execution would violate the Eighth Amendment:
In this case, the Defendant has not met his heavy burden to establish that he is ”sure or very likely” to experience serious illness or needless suffering. The very purpose of the initial injection of midazolam is to render the Defendant unconscious before further proceeding with the execution. There is a chance that the Defendant may suffer an acute onset of porphyria by an accumulation of porphyrin in his tissues which could lead to the onset of pain but, based on the evidence presented, it is the Court‘s conclusion that the effects of midazolam will have rendered the Defendant unconscious and probably comatose by the time there is any risk of pain. The Defendant will be both unconscious and insensate before he would experience any possible onset of pain or a porphyria attack.
We conclude that the circuit court‘s factual findings are supported by competent, substantial evidence, and that the circuit court did not err in its legal conclusions. Dr. Evans testified that having porphyria will not “interfere with [Davis‘] ability to be placed unconscious and rendered insensate” by the injection of midazolam. Dr. Evans further testified that midazolam will render an individual unconscious within the span of time necessary to count down from ten to one, and would effectively place an individual in a coma within “5 to 10 minutes.” Dr.
Although Dr. Zivot testified that the amount of midazolam contemplated by the execution protocol “will lead to a porphyria crisis,” and a porphyria attack could “potentially” occur within minutes of the introduction of midazolam, Dr. Zivot did not present any evidence that this result was sure or very likely to occur. In fact, Dr. Zivot‘s testimony was directly refuted by Dr. Evans, who stated, in discussing how a porphyria attack proceeds, that “regardless of what drug is inducing the increased production of porphyrin, it‘s not an immediate response.” Dr. Evans stated that it was his professional opinion that it was “highly unlikely” that Davis would suffer from the symptoms of a porphyria attack before the onset of the midazolam and, when asked whether an attack could take place within minutes, responded, “I don‘t think so. I think you‘re talking about hours and maybe days.” The circuit court credited Dr. Evans’ testimony that any possible porphyria attack would occur, if at all, only after Davis was rendered unconscious and insensate by the injection of midazolam.
Davis has not demonstrated that Florida‘s lethal injection protocol—as applied to him—violates the Eighth Amendment to the United States Constitution because he has not shown that allegedly suffering from porphyria creates a
Accordingly, the postconviction court did not err in denying Davis’ as-applied challenge to Florida‘s lethal injection protocol, and we affirm the circuit court‘s denial of relief. Additionally, for the same reasons that we conclude the circuit court did not err in denying relief on this claim, we deny Davis’ motion for stay of execution, which is premised on the same as-applied challenge to Florida‘s lethal injection protocol. See Buenoano v. State, 708 So. 2d 941, 951 (Fla. 1998) (explaining that a stay of execution on a successive motion for postconviction relief is warranted only where there are substantial grounds upon which relief might be granted).
Ineligibility for the Death Penalty
In Davis’ second claim on appeal, he asserts that he is ineligible for the death penalty, relying on allegedly newly discovered evidence regarding the effects of alcoholism and sexual abuse on brain development in children, and the United States Supreme Court‘s decision in Roper v. Simmons, 543 U.S. 551, 578 (2005), which held that “the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were
In addressing a similar constitutional challenge to a defendant‘s death sentence premised on Roper, this Court stated in Schoenwetter v. State, 46 So. 3d 535, 561 (Fla. 2010), that we have “consistently rejected such claims in cases where the defendant was not below eighteen years of age at the time of the criminal offense.” Thus, because this Court has held that ”Roper only prohibits the execution of those defendants whose chronological age is below eighteen,” Hill v. State, 921 So. 2d 579, 584 (Fla. 2006), Davis’ challenge is without merit.
While Davis acknowledges that he was over the age of eighteen at the time of the crimes, he nevertheless asks this Court to reconsider its precedent on the issue based on allegedly newly discovered evidence, consisting of recently published studies addressing the effects of alcoholism and sexual abuse on brain development, that he asserts illustrate that he “was the functional equivalent of a child,” which renders him ineligible for the death penalty. Davis also “requests a stay from execution, and an evidentiary hearing to litigate the weight to be afforded the statutory and non-statutory mitigators related to age and maturity levels” in light of the recently published studies.
After thoroughly reviewing the record, we cannot find any indication that Davis ever previously argued or presented any evidence regarding his claim that he was the “functional equivalent of a child” at the time of the murder. At trial, Davis’ theory of mitigation, as found by the trial court, was that he committed the murder while he was under the influence of an extreme mental or emotional disturbance. See Davis, 698 So. 2d at 1187. In finding the existence of this mitigating circumstance, the trial court stated that
it is apparent to this Court the defendant came from a dysfunctional family; the defendant is an alcoholic, with low self-esteem; the defendant had an abused, neglected childhood; the defendant has had learning disabilities, which he has overcome; the defendant is immature for his age; the defendant may have an anti-social personality disorder; the defendant may have suffered from post-traumatic stress disorder; the defendant has suffered from chronic depression and anxiety; the defendant has had poor impulse control and defective judgment at times and the defendant has suffered from attention deficit hyperactivity disorder.
State v. Davis, No. CF94-1248A1-XX (Fla. 10th Jud. Cir. Ct. order filed June 30, 1995).
Further, on direct appeal and in seeking postconviction relief, Davis did not assert any claims analogous to the one he now raises before this Court, after the signing of his death warrant. Instead, on direct appeal, Davis failed to raise a claim involving his “emotional development,” see Davis, 698 So. 2d 1182, and, in his postconviction proceedings, Davis argued with respect to his mental health only that his penalty-phase counsel was ineffective for failing to present expert
An evidentiary hearing on a
This Court has set forth a two-prong test that a defendant must satisfy in order to obtain relief based on newly discovered evidence:
First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.
Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) (citing Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)). “If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.” Id.
The studies cited by Davis, addressing the effects of alcoholism and sexual abuse on brain development, do not constitute newly discovered evidence. This Court has previously stated that it “has not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence.” Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007). The articles that Davis relies upon fall squarely within this subject area and therefore do not constitute newly discovered evidence. See Farina v. State, 992 So. 2d 819 (Fla. 2008) (table decision) (holding that a “study on brain mapping is not newly discovered evidence“); Schwab, 969 So. 2d at 325
Further, as explained above, even if these recently published articles were considered newly discovered evidence, Davis still fails to put forth a cognizable claim. The United States Supreme Court‘s decision in Roper prohibits the execution of those individuals “who were under the age of 18 when their crimes were committed.” 543 U.S. at 578. In interpreting the Supreme Court‘s decision, this Court has previously stated that ”Roper only prohibits the execution of those defendants whose chronological age is below eighteen.” Hill, 921 So. 2d at 584. Therefore, because Davis was over the age of eighteen when he committed murder, Roper does not apply, and his claim is without merit.
Accordingly, we affirm the circuit court‘s summary denial of relief on this claim.
Clemency Proceedings
In his final claim on appeal, Davis challenges the constitutionality of his clemency proceedings. With respect to this claim, Davis does not contend that he was completely denied clemency review. In fact, Davis concedes that he was selected for clemency review determination in 2013, and that he did in fact receive an interview before the Florida Commission on Offender Review (formerly known as the Florida Parole Commission), during which he was represented by counsel
Nevertheless, Davis asserts that his due process rights were violated during the clemency proceedings because one of the parole commissioners present during Davis’ interview before the Florida Commission on Offender Review was retired. Davis also argues that communications between the Polk County State Attorney and Assistant General Counsel for Governor Scott prior to Davis’ clemency proceedings, in which the Office of the Governor expressed disapproval of Davis’ crimes, illustrate that Governor Scott was predisposed to denying Davis clemency relief and call into question the validity of his clemency proceedings. The circuit court summarily denied this claim without holding an evidentiary hearing. We agree with the circuit court and conclude that these arguments are without merit for several reasons.
With respect to Davis’ first argument,
Further, as this Court has previously noted, “[t]he clemency process in Florida derives solely from the Florida Constitution and [this Court has] recognized that the people of the State of Florida have vested ‘sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace.‘” Carroll v. State, 114 So. 3d 883, 888 (Fla.) (quoting Sullivan v. Askew, 348 So. 2d 312, 315 (Fla. 1977)), cert. denied, 133 S. Ct. 2762 (2013). Indeed, “[t]he Florida Rules of Executive Clemency expressly provide that ‘[t]he Governor has the unfettered discretion to deny clemency at any time, for any reason.‘” Gore, 91 So.3d at 779 (quoting Fla. R. Exec. Clem. 4) (second alteration in original). Accordingly, this Court “will not generally second-guess the executive‘s determination that clemency is not warranted.” Pardo, 108 So. 3d at 568.
In its order denying relief on this claim, the circuit court based its denial on these general principles, stating as follows: “Clemency reviews and proceedings are within the exclusive purview of the Executive Branch. It is not up to the Judicial Branch to second guess the Executive Branch in this regard, and the Judicial Branch must respect the separation of powers between the branches of government.” This conclusion is fully consistent with this Court‘s precedent. See Johnston v. State, 27 So. 3d 11, 26 (Fla. 2010) (declining to “depart from the Court‘s precedent, based on the doctrine of separation of powers, in which we have held that it is not our prerogative to second-guess the executive on matters of clemency in capital cases“); Rutherford v. State, 940 So. 2d 1112, 1122-23 (Fla. 2006) (denying a clemency claim because the defendant had a hearing and because clemency is an executive function). Davis concedes that he was selected for clemency review determination in 2013 and that he did in fact receive an interview before the Florida Commission on Offender Review. In light of the fact that his death warrant, signed by the Governor, makes clear that “executive clemency ... was considered pursuant to the Rules of Executive Clemency and it has been determined that executive clemency is not appropriate,” this Court will not
Accordingly, we conclude that the circuit court did not err in summarily denying this claim.2
CONCLUSION
For the reasons stated above, we affirm the circuit court‘s denial of Davis’ successive motion for postconviction relief. Additionally, we deny Davis’ motion for a stay of execution. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.
An Appeal from the Circuit Court in and for Polk County, Donald G. Jacobsen, Judge - Case No. 1994-CF-1248A-XX
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Stephen D. Ake and Timothy A. Freeland, Assistant Attorneys General, Tampa, Florida, for Appellee