Criminal Law Alert

Lightbourne failed to show Florida’s current lethal injection procedures violate the Eighth Amendment.

Lightbourne v. State, SC06-2391, Opinion filed November 1, 2007.

Lightbourne, convicted for capital murder, appealed the final order from his All Writs Petition alleging that the “lower court erred in refusing to consider certain memoranda on the grounds that they fall under the definition of attorney work-product and are thus protected by the lawyer-client privilege,” and that “Florida’s lethal injection procedures violate the Eighth Amendment.”

The Court held that Lightbourne was given “ample opportunity over four months, with thirteen days of hearings and voluminous documentary evidence, to present his own witnesses and to cross-examine the witnesses presented by the State concerning both the Diaz execution and the revised lethal injection procedures.” Lightbourne visited the death chamber and presented additional testimony regarding that trip. The Court further concluded that “the trial court spent considerable time addressing the issue of public records and that no abuse of discretion occurred in any of its rulings,” thus, rejecting Lightbourne’s claim he was denied a full and fair hearing.

Lightbourne alleged the trial court erred in excluding two memoranda prepared by an assistant general counsel for the Department of Corrections (DOC), dated June 16, 2006 and August 15, 2006, when it held that “these memoranda both constituted work product and were protected by attorney-client privilege.” Noting that the memoranda were actually provided to Lightbourne in a public records request in August 2007 and that the memoranda appeared in a portion of the record on appeal not under seal, the Court concluded that “any asserted privilege was waived as a result of the manner of production in this case.”

Most important, Lightbourne’s allegation that Florida’s lethal injection procedures violate the Eighth Amendment was unfounded. The Court determined that following the Diaz execution, “the executive branch under the direction of the Governor and the DOC instituted an extensive and comprehensive review of the problem and proposed solutions, many of which have been enacted by the DOC.” The DOC revised its August 2006 lethal injection procedures in May 2007 and again in August 2007.

The August 2007 procedures focused upon the warden’s role to “assess whether the inmate is unconscious” after being injected with “two syringes of sodium pentothal and the first saline syringe.” If a determination cannot be made, the warden must “suspend the execution process, order the window closed, and consider a secondary access site.” When the secondary access site has been secured, the “team warden will order the execution to proceed and the executioners will inject another five grams of sodium pentothal into the inmate.” The second and third drugs will not be administered until the inmate “is deemed unconscious” and the warden “orders” the execution to proceed. IV lines will be monitored at each IV access point, along with the inmate’s face, via the closed circuit television cameras. Several communication procedures have been set up for continual contact between the team members and the team warden, who is “ultimately responsible for every aspect of the execution process.” The Court, based on its analysis of the evidence presented and the application of the law to the evidence, affirmed the trial courts finding there is no Eighth Amendment violation.

Regarding the internal memorandum “recommending the use of a BIS monitor to more accurately assess the level of consciousness of the inmate,” the Court held that it was not “within this Court’s purview to mandate the use of a specific device to assess consciousness,” and “unless the United States Supreme Court intends for the judicial branch to exercise detailed supervisory authority over the process of lethal injection, we do not consider the failure of the DOC to incorporate the use of the BIS monitor to constitute an Eighth Amendment violation in itself.”

The Court held that Lightbourne failed to show that “Florida’s current lethal injection procedures, as actually administered through the DOC, are constitutionally defective in violation of the Eight Amendment of the United States Constitution.”

Assistant Deputy Attorney General Carolyn Snurkowski and Senior Assistant Attorney General Kenneth Nunnelley represented the state.

Opinion


Postconviction court not granting an evidentiary hearing or taking judicial notice of the evidence previously submitted was harmless error in active death warrant case.

Schwab v. State, SC07-1603, Opinion filed November 1, 2007.

Schwab, convicted of capital murder and under an active death warrant which sets his execution for November 15, 2007, appealed the circuit court’s order denying his successive motion for postconviction relief claiming the trial court erred in summarily denying his claim without holding an evidentiary hearing on his claim that Florida’s lethal injection protocol violates the Eighth Amendment. Schwab also claimed that the circuit court erred when it failed to take “judicial notice of the circuit court’s record in State v. Lightbourne, No. 1981-170CF (Fla. 5th Cir. Ct.) (Lightbourne),” claiming that the postconviction judge should have granted his motion, “particularly since both parties stipulated to the introduction of this material and reasonably relied upon the Lightbourne materials being in the record based on the court’s initial representations indicting that it would take notice of that testimony.”

The Court has previously held that “when an inmate presents an Eighth Amendment claim which is based primarily upon facts that occurred during a recent execution, the claim is not procedurally barred.” See Buenoano v. State, 565 So. 2d 309, 311 (Fla. 1990). The Court concluded that Schwab’s allegations were sufficiently pled and the “postconviction court should have either granted Schwab an evidentiary hearing, or if Schwab was relying upon the evidence already presented in Lightbourne, the court should have taken judicial notice of that evidence.” However, the Court held that the error is harmless because “this Court considered all of the evidence presented in Lightbourne when reviewing the Eighth Amendment challenge presented here.”

Schwab also argued, after alleging several times in his initial postconviction motion, that he suffered from brain damage, however, never presented any evidence of this claim during the evidentiary hearing that was held. Because of this, the Court affirmed the circuit court’s holding that he is procedurally barred from presently doing so. Schwab further alleged that he was entitled to a new trial due to “two recent scientific articles regarding brain anatomy and sexual offense.” The Court has previously held that it does not recognize “new opinions” or “new research studies” as newly discovered evidence. Cf. Diaz v. State, 945 So. 2d 1136, 1144 (Fla.).

Senior Assistant Attorney General Kenneth Nunnelley represented the state.

Opinion


Postconviction relief; “When dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected.”

Spera v. State, SC06-1304, Opinion filed November 1, 2007.

After Spera’s conviction of fleeing or attempting to elude a law enforcement officer and burglary of an occupied dwelling was affirmed, he filed a postconviction motion alleging ineffective assistance of trial counsel because trial counsel failed to “call witnesses on Defendant’s behalf, although he had been instructed to do so.” Finding the claim “facially insufficient,” the trial court dismissed the case. On appeal, the 4th DCA held that under Nelson v. State, 875 So. 2d 579, 581 (Fla. 2004), “amendments should be permitted only where the defendant omitted the ‘technical’ requirement of alleging a witness’s availability.” The 4th DCA cited conflict with the 2nd DCA’s decision in Keevis v. State, 908 So. 2d 552 (Fla. 2d DCA 2005), “which applied Nelson more broadly to other pleading deficiencies in a claim alleging counsel’s failure to call witnesses at trial.” Both district courts also relied, “in disparate ways,” on the Court’s decision in Bryant v. State, 901 So. 2d 810 (Fla. 2005), which “allowed defendants sentenced to death an opportunity to amend insufficient pleadings.” The Court “granted review to resolve the conflict.”

The Court determined that “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” The Court held that “the proper procedure is to strike the motion with leave to amend within a reasonable period,” which is what occurred in Bryant,

The Court “stressed” this decision is not authorizing “shell motions,” especially in capital cases, and that the decision is “limited to motions deemed facially insufficient to support relief–that is, claims that fail to contain required allegations. When trial courts deny relief because the record conclusively refutes the allegations, they need not permit the amendment of pleadings.” The decision is “designed to allow amendments where the defendant can, in good faith, correct the deficiency.”

The Court quashed the 4th DCA’s decision in the instant case and remanded with directions ordering the trial court to “permit petitioner to file an amended pleading, if indeed he can do so in good faith.”

Senior Assistant Attorney General Celia Terenzio and Assistant Attorney General Mark Hamel represented the state.

Opinion


Competent, substantial evidence supported the trial courts finding that trial counsel was not ineffective for failing to request a competency evaluation.

Lawrence v. State, SC06-352 & SC06-1152, Opinion filed November 1, 2007.

Lawrence, appealed the circuit court’s order denying his postconviction motion for relief raising the same eight claims he raised to the postconviction court and “challenging the postconviction court’s finding that counsel was not ineffective for failing to request a competency evaluation during the penalty phase.”

Lawrence alleged that because of his mental illness, low intelligence and the misrepresentation of his trial counsel he did not understand the consequences of his plea, did not understand “the substantive words used during the plea,” and because of trial counsel’s actions and his mental illness, “the trial court’s inquiry was insufficient to discover” that his plea was involuntary.

The record and weight of the evidence presented at the evidentiary hearing reflected that Lawrence had a mental illness and complained twice about “experiencing hallucinations” during the penalty phase, however, he was found by two experts prior to his trial to be “legally competent to proceed.” Testimony revealed that neither trial counsel noticed “any deterioration in Lawrence’s ability from the time of this finding.” The trial judge, prior to accepting the plea, “discussed Lawrence’s mental issues with counsel, the defendant, and even the defendant’s mother,” and that counsel and Lawrence’s mother “both asserted that the plea was Lawrence’s decision, and that they believed that he was not blindly following counsel’s advice by accepting the plea.” Defense counsel, Elton Killam, testified that prior to the plea, he “specifically inquired whether Lawrence was having any hallucinations or if there were any other problems that would affect his decision to plead guilty,” and Lawrence asserted that he had no issues. The record revealed that the court engaged in a lengthy colloquy with Lawrence to ensure Lawrence understood the “plea and its consequences.” The Court found that “Lawrence freely, voluntarily, and knowingly entered into the plea and that Lawrence’s decision to plead guilty was his own, even in light of his limited intellectual ability and mental issues.” Because there was “competent, substantial evidence to support the postconviction court’s factual findings relative to this claim,” the Court found there was “no error as to the postconviction court’s conclusions of law.”

Lawrence further alleged ineffective assistance of counsel because his counsel failed to request a competency hearing after Lawrence told his counsel he was “suffering hallucinations” during the penalty phase. The Court concluded after a complete review of the record, it was difficult to determine if Lawrence was “truly experiencing hallucinations” or just “bothered by portions of the evidence which were being presented.” The record revealed that Lawrence was “directly questioned” about this at the time he reported the problem; there was no new evidence revealed at the evidentiary hearing “that would have compelled counsel to seek a competency hearing,” and that the testimony of Deputy Jarvis, who talked with Lawrence immediately after the reported incident, said that Lawrence was upset and that Lawrence told him “that he did not like hearing the tapes because it seemed like the crime was happening all over again —similar to statements that he made on the record to the judge.” The Court found that there was “competent, substantial evidence to support the postconviction court’s factual findings, and Lawrence has not shown that the trial court’s conclusions of law are erroneous.”

Assistant Attorney General Charmaine Millsaps represented the state.

Opinion