SC14-1178 Supplemental Answer Brief · ii TABLE OF AUTHORITIES Cases Baze v. Rees, 553 U.S. 35...
Transcript of SC14-1178 Supplemental Answer Brief · ii TABLE OF AUTHORITIES Cases Baze v. Rees, 553 U.S. 35...
IN THE SUPREME COURT OF FLORIDA
EDDIE WAYNE DAVIS,
Appellant, CASE NO. SC14-1178
L.T. No. 1994-CF-1248A-XX
v.
STATE OF FLORIDA DEATH WARRANT SIGNED
EXECUTION SCHEDULED
Appellee. July 10, 2014, 6:00 p.m.
_________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE TENTH JUDICIAL CIRCUIT,
IN AND FOR POLK COUNTY, FLORIDA
SUPPLEMENTAL ANSWER BRIEF OF THE APPELLEE
PAMELA JO BONDI
ATTORNEY GENERAL
STATE OF FLORIDA
STEPHEN D. AKE
Assistant Attorney General
Florida Bar No. 0014087
TIMOTHY A. FREELAND
Assistant Attorney General
Florida Bar No. 0539181
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, Florida 33607
Telephone: 813-287-7910
Facsimile: 813-281-5501
[email protected] [and]
[email protected] [and]
COUNSEL FOR APPELLEE
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TABLE OF CONTENTS
TABLE OF CONTENTS.............................................. i
TABLE OF AUTHORITIES.......................................... ii
PRELIMINARY STATEMENT.......................................... 1
STATEMENT REGARDING ORAL ARGUMENT.............................. 1
STATEMENT OF THE CASE AND FACTS................................ 2
SUMMARY OF THE ARGUMENT....................................... 15
ARGUMENT...................................................... 16
ISSUE I.................................................. 16
THE POSTCONVICTION COURT ACTED WITHIN ITS
SOUND DISCRETION IN ALLOWING DR. EVANS TO
TESTIFY............................................. 16
ISSUE II................................................. 21
THE POSTCONVICTION COURT PROPERLY DENIED
DAVIS’ CLAIM THAT HIS ALLEGED MEDICAL
CONDITION WOULD CREATE A RISK THAT FLORIDA’S
LETHAL INJECTION PROCEDURE IS SURE OR VERY
LIKELY TO CAUSE SERIOUS ILLNESS AND NEEDLESS
SUFFERING AND GIVE RISE TO SUFFICIENTLY
IMMINENT DANGERS.................................... 21
CONCLUSION.................................................... 29
CERTIFICATE OF FONT COMPLIANCE................................ 30
CERTIFICATE OF SERVICE........................................ 30
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TABLE OF AUTHORITIES
Cases
Baze v. Rees,
553 U.S. 35 (2008) .......................................... 15
Canakaris v. Canakaris,
382 So. 2d 1197 (Fla. 1980) ................................. 17
Chavez v. Palmer,
2014 WL 521067 (M.D. Fla. Feb. 10, 2014) ................ 16, 25
Colusa Remedy Co. v. United States,
176 F.2d 554 (8th Cir. 1949) ................................ 16
Davis v. McNeil,
2009 WL 860628 (M.D. Fla. 2009) .............................. 6
Davis v. McNeil,
559 U.S. 949 (2010) .......................................... 7
Davis v. Sec’y, Dept. of Corr.,
No. 09-11907-P (11th Cir. Sept. 8, 2009) (unpublished) ....... 7
Davis v. State,
698 So. 2d 1182 (Fla. 1997),
cert. denied, 522 U.S. 1127 (1998) ........................... 5
Davis v. State,
875 So. 2d 359 (Fla. 2003) ................................... 6
Henry v. State,
134 So. 2d 938 (Fla. 2014) .............................. passim
Howell v. State,
133 So. 2d 511 (Fla. 2014) ...................... 16, 25, 27, 28
Huff v. State,
569 So. 2d 1247 (Fla. 1990) ................................. 17
Provenzano v. State,
750 So. 2d 597 (Fla. 1999) .................................. 18
Ramirez v. State,
542 So. 2d 352 (Fla. 1989) .................................. 17
Other Authorities
§ 90.702, Fla. Stat. (2013)................................... 18
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28 U.S.C. § 2254............................................... 6
Fla. R. Crim. P. 3.850......................................... 5
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PRELIMINARY STATEMENT
Citations to the record in this brief will be designated as
follows: The record on appeal concerning the original trial
court proceedings shall be referred to as “DAR V_:__” followed
by the appropriate page number. The record on appeal of the
denial of the original 3.850 motion shall be referred to as
“PCR1 V_:__” followed by the appropriate page number and the
record on appeal from the successive postconviction proceedings
will be designated as “PCR2 V_:__.” The two supplemental volumes
following the evidentiary hearing after relinquishment will be
cited as “Supp. PCR2 V_:__” followed by the appropriate page
number.
STATEMENT REGARDING ORAL ARGUMENT
The State respectfully submits that oral argument is not
necessary on the appeal from the summary denial of Davis’
successive motion to vacate. The claims raised in this
successive motion for postconviction relief were summarily
denied as untimely and/or meritless as a matter of established
Florida law. Accordingly, argument will not materially aid the
decisional process.
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STATEMENT OF THE CASE AND FACTS
Eddie Wayne Davis was indicted on April 7, 1994 for first—
degree murder, burglary with assault or battery, kidnapping a
child under thirteen years of age, and sexual battery on a child
under twelve years of age. He was found guilty as charged, the
jury unanimously recommended a sentence of death and the trial
court sentenced Davis to death. The salient facts from Davis’
trial were set forth by this Court as follows in the direct
appeal opinion:
On the afternoon of March 4, 1994, police found
the body of eleven-year-old Kimberly Waters in a
dumpster not far from her home. She had numerous
bruises on her body, and the area between her vagina
and anus had been lacerated. An autopsy revealed that
the cause of death was strangulation.
On March 5, police questioned Davis, a former
boyfriend of Kimberly’s mother, at the new residence
where he and his girlfriend were moving. Davis denied
having any knowledge of the incident and said that he
had been drinking at a nearby bar on the night of the
murder. Later that same day police again located Davis
at a job site and brought him to the police station
for further questioning, where he repeated his alibi.
Davis also agreed to and did provide a blood sample.
While Davis was being questioned at the station,
police obtained a pair of blood-stained boots from the
trailer Davis and his girlfriend had just vacated.
Subsequent DNA tests revealed that the blood on the
boots was consistent with the victim’s blood and that
Davis’s DNA matched scrapings taken from the victim’s
fingernails. A warrant was issued for Davis’s arrest.
On March 18, Davis agreed to go to the police
station for more questioning. He was not told about
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the arrest warrant. At the station, he denied any
involvement and repeated the alibi he had given
earlier. After about fifteen minutes, police advised
Davis of the DNA test results. Davis insisted they had
the wrong person and asked if he was being arrested.
Police told him that he was. At that point Davis
requested to contact his mother so she could obtain an
attorney for him, and the interview ceased. Davis was
placed in a holding cell.
A few minutes later, while Davis was in the
holding cell, Major Grady Judd approached him and,
making eye contact, said that he was disappointed in
Davis. When Davis responded inaudibly, Judd asked him
to repeat what he had said. Davis made a comment
suggesting that the victim’s mother, Beverly Schultz,
was involved. Judd explained that he could not discuss
the case with Davis unless he reinitiated contact
because Davis had requested an attorney. Davis said he
wanted to talk, and he did so, confessing to the
crimes against Kimberly and implicating Beverly
Schultz as having solicited the crimes. Within a half
hour after this interview, police conducted a taped
interview in which Davis gave statements similar in
substance to the untaped confession. Davis’s full
Miranda [FN1] warnings were not read to him until the
taped confession began.
In May, 1994, Davis wrote a note asking to speak
to detectives about the case. In response, police
conducted a second taped interview on May 26, 1994.
Police asked Davis if he was willing to proceed
without the advice of his counsel, to which Davis
responded yes, but specific Miranda warnings were not
recited to Davis. During this interview, Davis again
confessed to killing Kimberly but stated that Beverly
Schultz was not involved. Davis explained that he
originally went to Schultz’s house to look for money
to buy more beer. Because Schultz normally did not
work on Thursday nights and because her car was gone,
Davis believed that no one was home. Indeed, Schultz
was not home at the time because she had agreed to
work a double shift at the nursing rehabilitation
center where she was employed. However, her daughters,
Crystal and Kimberly, were at the house sleeping. When
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Davis turned on the lights in Beverly Schultz’s
bedroom, he saw Kimberly, who was sleeping in
Schultz’s bed. Kimberly woke up and saw him. He put
his hand over her mouth and told her not to holler,
telling her that he wanted to talk to her. Kimberly
went with him into the living room. Davis put a rag in
her mouth so she could not yell.
Davis related that they went outside and jumped a
fence into the adjacent trailer park where Davis’s old
trailer was located. Davis said that while they were
in the trailer, he tried to put his penis inside of
Kimberly. When he did not succeed, he resorted to
pushing two of his fingers into Kimberly’s vagina.
Afterwards, Davis took Kimberly to the nearby Moose
Lodge. He struck her several times, then placed a
piece of plastic over her mouth. She struggled and
ripped the plastic with her fingers but Davis held it
over her mouth and nose until she stopped moving. He
put her in a dumpster and left.
Davis moved to suppress the March 18 and May 26
statements he made to law enforcement officers,
arguing that his Miranda rights were violated. The
trial court denied those motions. The jury found Davis
guilty of first-degree murder, burglary with assault
or battery, kidnapping a child under thirteen years of
age, and sexual battery on a child under twelve years
of age. The jury unanimously recommended a sentence of
death and the trial court sentenced Davis to death.
In aggravation, the trial court found that the
murder was: (1) committed by a person under sentence
of imprisonment; (2) committed during the commission
of a kidnapping and sexual battery; (3) committed for
the purpose of avoiding or preventing a lawful arrest;
and (4) especially heinous, atrocious, or cruel. As
statutory mitigation, the court found that the murder
was committed while the defendant was under the
influence of extreme mental or emotional disturbance
and gave this factor great weight.
As nonstatutory mitigation, the court found that
Davis was capable of accepting responsibility for his
actions and had shown remorse for his conduct and
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offered to plead guilty; that he had exhibited good
behavior while in jail and prison; that he had
demonstrated positive courtroom behavior; that he was
capable of forming positive relationships with family
members and others; that he had no history of violence
in any of his past criminal activity; that he did not
plan to kill or sexually assault the victim when he
began his criminal conduct; that he cooperated with
police, confessed his involvement in the crime, did
not resist arrest, and did not try to flee or escape;
that he had always confessed to crimes for which he
had been arrested in the past, accepted
responsibility, and pled guilty; that he had suffered
from the effects of being placed in institutional
settings at an early age and spending a significant
portion of his life in such settings; and that Davis
obtained his GED while in prison and participated in
other self-improvement programs. Although the trial
court gave “medium weight” to several of these
nonstatutory mitigators, most of them were assigned
little weight.
Davis v. State, 698 So. 2d 1182, 1185-87 (Fla. 1997) (footnote
omitted), cert. denied, 522 U.S. 1127 (1998).
Davis’ initial Motion to Vacate Judgment of Convictions and
Sentences with Special Request for Leave to Amend was filed
pursuant to Florida Rule of Criminal Procedure 3.850 on May 28,
1998, and an amended motion was filed on June 23, 2000. (PCR1
V2-3:180-204, 282-410). Davis raised a number of claims,
including a claim that his trial counsel was ineffective for
failing to present expert mental health testimony at the penalty
phase. At the postconviction evidentiary hearing in 2001,
collateral counsel presented testimony from Dr. Michael Maher
regarding his neurological examination of Davis in 2000. (PCR1
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V4:557). Relevant to the current issue in this appeal, Dr. Maher
testified that porphyria is a metabolic disease related to the
way the body chemically processes blood and blood products.
(PCR1 V4:558-59). Dr. Maher testified that the symptoms of
porphyria could include “mental confusion, disorientation, poor
judgment, irritability, impulsiveness. Poor coordination is
another thing that can occur, and under severe circumstances,
coma can occur.” (PCR1 V4:559). Dr. Maher testified that there
are specific metabolic tests to determine whether someone has
porphyria, but Dr. Maher did not perform any of these tests on
Davis and thus, did not diagnosis Davis with porphyria. (PCR1
V4:559, 573).
Following the evidentiary hearing, the postconviction court
issued an order denying relief. (PCR1 V5:687-713). This Court
affirmed the lower court’s denial of postconviction relief and
also denied Davis’ petition for writ of habeas corpus. Davis v.
State, 875 So. 2d 359 (Fla. 2003).
Davis filed his petition for habeas corpus pursuant to 28
U.S.C. § 2254 in the United States District Court, Middle
District, Tampa Division on November 23, 2004. On March 30,
2009, the United States District Court denied Davis habeas
corpus relief on all grounds. Davis v. McNeil, 2009 WL 860628
(M.D. Fla. 2009) (unpublished). On April 13, 2009, the Eleventh
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Circuit Court of Appeals denied a certificate of appealability.
Davis v. Sec’y, Dept. of Corr., No. 09-11907-P (11th Cir. Sept.
8, 2009) (unpublished). Davis’ petition for writ of certiorari
to the United States Supreme Court was denied on February 22,
2010. Davis v. McNeil, 559 U.S. 949 (2010).
On June 2, 2014, Governor Rick Scott signed Davis’ death
warrant and his execution is scheduled for July 10, 2014 at 6:00
p.m. Davis filed a successive motion for postconviction relief
on June 9, 2014, raising the following three claims:
Claim I: Mr. Davis is entitled to a stay of execution
due to the recent “botched” execution in Oklahoma and
the decision by the United States Supreme Court to
stay the execution of a condemned inmate in the state
of Missouri. The failure to grant a stay could violate
Mr. Davis’ 8th Amendment Constitutional rights under
the United States Constitution and corresponding
rights under the Florida Constitution.
Claim II: Newly discovered evidence indicates that an
execution of Mr. Davis violates his rights under the
8th Amendment of the United States Constitution and
the corresponding provisions of the Florida
Constitution.
Claim III: Mr. Davis did not receive a proper clemency
review process.
(PCR2 V2:307-47). The next day, Davis filed a motion seeking a
stay of execution and an independent medical examination
permitting the testing of Davis’ blood at a laboratory certified
to conduct testing to determine if Davis had porphyria. (PCR2
V2:348-51). Following the State’s response to his successive
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motion, Davis filed another motion asserting further grounds in
support of his motion for a medical examination and sought an
order compelling the Department of Corrections to obtain blood,
urine, and stool samples from Davis. (PCR2 V3:406-13). After
conducting a case management conference, the court issued orders
denying Davis’ successive postconviction motion and motion for
independent medical examination. (PCR2 V3:474-78).
After filing his Initial Brief with this Court, Davis filed
a Motion to Stay his execution and attached an affidavit from
Dr. Joel Zivot alleging that he suffers from the medical
condition porphyria and the use of midazolam would result in
extreme and excruciating pain. On June 26, 2014, this Court
issued an order temporarily relinquishing jurisdiction to the
circuit court in order to conduct a hearing on Davis’ claim.
On June 30, 2014, the court conducted a hearing where Davis
and Dr. Joel Zivot1 testified for the defense, and the State
presented testimony from Dr. Roswell Lee Evans, a doctor of
pharmacy and Dean of the Harrison School of Pharmacy at Auburn
University. Davis testified that he currently has a rash which
he described as “eating the flesh away” and which he claimed to
1 Dr. Zivot is a board certified anesthesiologist and Medical
Director at the Cardiothoracic Intensive Care Unit at Emory
University Hospital. (Supp. PCR2 V1:64-65).
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have experienced one time before, several months ago. (Supp.
PCR2 V1:55-56). He experiences mouth blisters, “burning pain” in
his legs and feet, and numbness in his left leg that has been
there for the past year; he also sometimes feels either hot or
cold sensations in his feet. (Supp. PCR2 V1:57). He was given
dandruff shampoo for the rash but it was ineffective. (Supp.
PCR2 V1:58). On cross examination, Davis conceded that he has
never been diagnosed with porphyria. (Supp. PCR2 V1:59). He has
a history of arthritis and has been given Valtrex for the mouth
blisters, and this was effective. (Supp. PCR2 V1:60).
Dr. Zivot testified that porphyria is a condition involving
the abnormal regulation of heme, which is an important substance
used by the body to create hemoglobin and other compounds. It is
made in the bone marrow and liver. (Supp. PCR2 V1:68). Porphyria
is known to cause skin rashes, neuropathy, allodynia, seizures,
nausea and vomiting. (Supp. PCR2 V1:69-71). There are several
different types of porphyria. Cutaneous porphyria has visible
symptoms. Acute porphyria occurs when there is an “initiating
event” and the effect is immediate. (Supp. PCR2 V1:71-72).
Dr. Zivot testified that midazolam is a sedating
benzodiazepine. It has no analgesic or pain relieving ability
(Supp. PCR2 V1:74-75). According to Dr. Zivot, the use of
midazolam would result in an accumulation of porphyrin. (Supp.
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PCR2 V1:77). Dr. Zivot opined that a large dose of midazolam
will lead to a porphyria crisis quicker than would a smaller
dose. (Supp. PCR2 V1:79). Symptoms would include abdominal pain,
tachycardia, high blood pressure, nausea and vomiting. Dr. Zivot
also opined that use of midazolam in the planned dosage of 500
milligrams will cause Davis to experience pain, nausea, and
vomiting. (Supp. PCR2 V1:84).
On cross examination, Dr. Zivot conceded that he has been a
vocal opponent of the use of lethal injection as a means of
capital punishment and that he has written and published two
articles advocating his views. (Supp. PCR2 V1:85-86). Dr. Zivot
acknowledged that midazolam is frequently and commonly used for
anesthesia. (Supp. PCR2 V1:91). There are many different types
of porphyria, depending upon how it is classified. (Supp. PCR2
V1:99-100). In developing his opinion, Dr. Zivot relied upon an
article in which chicken embryo liver cells were examined to
assess the effects of certain classes of medications on
porphyrin production. (Supp. PCR2 V1:103-04). He agreed that the
article identified midazolam as “generally safe” (Supp. PCR2
V1:105), but stated that this conclusion was not based on
clinical studies. Dr. Zivot agreed that he had not read the
studies cited in the article. (Supp. PCR2 V1:106-07). There are
studies that find midazolam to be safe for patients with
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porphyria. (Supp. PCR2 V1:108). Dr. Zivot agreed that no studies
exist showing that an outbreak of porphyria would occur within
minutes of administering a 500 milligram dose of midazolam.
(Supp. PCR2 V1:111). He agreed that the Porphyria Foundation
lists midazolam as safe for people with acute porphyria. (Supp.
PCR2 V1:112). Dr. Zivot agreed that porphyrins need to
accumulate in order to result in an attack, and that it takes
some time for that accumulation to occur. (Supp. PCR2 V1:114).
On redirect, Dr. Zivot explained that he does not like
lethal injection because midazolam is “medicine to heal.” He is
unable to verify that use of midazolam for the purpose of
capital punishment is “safe.” (Supp. PCR2 V1:117).
During court questioning, Dr. Zivot stated that
unconsciousness would occur within minutes after administration
of a 50 milligram dose of midazolam. He was not certain that a
larger dosage would cause unconsciousness more quickly. (Supp.
PCR2 V1:120-21).
Dr. Roswell Evans testified that he is a Doctor of
Pharmacology, and is Dean of Auburn University’s Harrison School
of Pharmacy. Dr. Evans is board certified as a Psychiatric
Pharmacist and has previously taught classes in pharmacy to both
medical doctors as well as nursing students. (Supp. PCR2 V1:128-
30). He testified that a 500 milligram dose of midazolam would
12
have a profound effect, as he considers that dosage to be
lethal. An individual given that quantity of midazolam would be
unconscious before he could count to ten and back. (Supp. PCR2
V1:136). An individual of Davis’ weight would require 10
milligrams of midazolam to render him unconscious. (Supp. PCR2
V1:138). Dr. Evans opined that Davis would not feel pain within
a few minutes after being given a 500 milligram dose of
midazolam. (Supp. PCR2 V1:139-41). Even though an individual may
suffer from porphyria, midazolam would still render that person
unconscious. (Supp. PCR2 V1:142). Assuming Davis has porphyria,
this condition would not interfere with midazolam’s efficacy in
rendering him insensate to pain within a few minutes. (Supp.
PCR2 V1:143). Dr. Evans testified that he was unable to find any
studies showing that a porphyric attack would occur during the
few minutes between administration of midazolam and the onset of
unconsciousness. He opined that it was “highly unlikely” that
Davis would suffer extreme or excruciating pain as a result of a
porphyric attack. (Supp. PCR2 V1:144).
Dr. Evans further testified that the literature indicates
that midazolam is a preferred choice of drug for persons
suffering from porphyria. (Supp. PCR2 V1:145). On cross
examination, Dr. Evans explained that he relied in part on a
textbook identified by him as Harrison’s Internal Medicine,
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which does not include midazolam as an unsafe drug for persons
suffering from porphyria. (Supp. PCR2 V1:148-49). The British
Journal of Anesthesiology lists midazolam as a better choice for
patients with porphyria. (Supp. PCR2 V1:149). Dr. Evans further
testified that a porphyric attack is unlikely to occur within
minutes; it is more likely to take hours or days. (Supp. PCR2
V1:150).
In response to questions asked by the court, Dr. Evans
explained that an individual given five milligrams of midazolam
would be rendered unconscious before they could count to ten and
back. An individual given 500 milligrams of midazolam would be
in a coma within five to ten minutes. He would be unable to feel
pain or other noxious stimuli after three to five minutes.
(Supp. PCR2 V1:160-61).
On rebuttal, Dr. Zivot disagreed that a person of Davis’
weight would be rendered unconscious with 10 milligrams of
midazolam. (Supp. PCR2 V1:162-63). He stated that there is no
evidence that midazolam is safe. (Supp. PCR2 V1:163). Midazolam
is not an analgesic at any dose. (Supp. PCR2 V1:164). Dr. Zivot
testified that he believed there should be no pain at all during
an execution and that there is “not a shred” of evidence that
midazolam is safe in the way it is to be used to execute Davis.
(Supp. PCR2 V1:165-66). The assumption is that it is not safe.
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(Supp. PCR2 V1:166). Evidence indicating that midazolam is safe
for people suffering from porphyria is anecdotal and involves
use of low dosages. (Supp. PCR2 V1:174). Dr. Zivot explained
that a person suffering from a porphyric attack would have his
condition worsened by use of midazolam; more midazolam means
more porphyria. (Supp. PCR2 V2:176). In response to court
questioning, Dr. Zivot agreed that a person administered a dose
of 50 milligrams would be unconscious within a matter of a few
minutes. (Supp. PCR2 V2:177).
On July 1, 2014, the postconviction court issued an order
denying Davis’ as-applied challenge to Florida’s lethal
injection procedures. The court found, in pertinent part:
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.
(Supp. PCR2 V2:314). This appeal follows.
15
SUMMARY OF THE ARGUMENT
The lower court acted within its sound discretion in
allowing the State’s expert pharmacologist, Dr. Evans, to
testify regarding the effects of midazolam. A pharmacologist
like Dr. Evans, by definition, is a person who studies the
actions of drugs and their effects on living tissue. The witness
was an expert given his knowledge, skill, experience, training,
and education, and his opinions could certainly assist the trier
of fact in understanding the relevant issues in dispute.
The postconviction court properly concluded that Davis
failed to carry his heavy burden under Baze v. Rees, 553 U.S. 35
(2008), of showing that because of his alleged medical
condition, Florida’s lethal injection protocol is “sure or very
likely to cause serious illness and needless suffering” and give
rise to “sufficiently imminent dangers.” As the testimony at the
evidentiary hearing demonstrated, even assuming Davis has some
form of porphyria, Florida’s administration of a 500 milligram
dose of midazolam will have rendered him unconscious and
insensate before he would experience any possible onset of pain.
Accordingly, this Court should affirm the lower court’s denial
of Davis’ as-applied constitutional challenge to Florida’s
lethal injection procedure.
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ARGUMENT
ISSUE I
THE POSTCONVICTION COURT ACTED WITHIN ITS SOUND
DISCRETION IN ALLOWING DR. EVANS TO TESTIFY.
In his first issue, Davis complains that the lower court
erred in allowing Dr. Roswell Evans, a board-certified
pharmacologist and Dean of the Harrison School of Pharmacy at
Auburn University, to testify outside of his area of expertise.2
Dr. Evans testified at the hearing regarding his qualifications
and informed the court that he is involved with examining and
researching of the impact of various drugs on individuals and
has both a consulting and a clinical practice. (Supp. PCR2
V1:128-30). Dr. Evans is a board certified psychiatric
neurologic pharmacist and has been qualified and testified as an
expert dealing with the effects of drugs on individuals many
times, including in Florida regarding the effects of midazolam.3
2 By definition, a pharmacologist is “one who makes a study of
the actions of drugs.” The Sloane-Dorland Annotated Medical-
Legal Dictionary (1987 ed.). Pharmacology is “the study of drugs
as to their chemistry, source, physical properties, preparation
and physiological effects on living tissue, whether they be used
in therapeutic amounts or otherwise, their absorption, their
fats, their excretion and therapeutic indications for their
use.” Colusa Remedy Co. v. United States, 176 F.2d 554, 558 (8th
Cir. 1949).
3 See generally Henry v. State, 134 So. 2d 938 (Fla. 2014);
Howell v. State, 133 So. 2d 511 (Fla. 2014); Chavez v. Palmer,
2014 WL 521067 (M.D. Fla. Feb. 10, 2014).
17
(Supp. PCR2 V1:133-34). Davis’ counsel conducted voir dire
regarding the expert’s qualifications and elicited testimony
that Dr. Evans is not a medical doctor or anesthesiologist, has
never directly administered midazolam, and does not specialize
in the treatment of patients who have porphyria. (Supp PCR2
V1:130-32). Thereafter, Davis’ counsel objected to Dr. Evans
testifying at the hearing. The court overruled the objection.
(Supp PCR2 V1:135).
The State submits that the postconviction court acted
within its sound discretion in allowing Dr. Evans to testify.
This Court has previously stated that “[t]he determination of a
witness’s qualifications to express an expert opinion is
peculiarly within the discretion of the trial judge, whose
decision will not be reversed absent a clear showing of error.”
Ramirez v. State, 542 So. 2d 352, 355 (Fla. 1989). The abuse of
discretion standard is satisfied when “the judicial action is
arbitrary, fanciful, or unreasonable, which is another way of
saying that discretion is abused only where no reasonable man
would take the view adopted by the trial court.” Huff v. State,
569 So. 2d 1247, 1249 (Fla. 1990) (quoting Canakaris v.
Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)). Furthermore, as
this Court has noted, “the circuit court below, as factfinder,
can determine the appropriate weight to be given to [the
18
expert’s] testimony. Provenzano v. State, 750 So. 2d 597, 602
(Fla. 1999) (citing Charles W. Ehrhardt, Florida Evidence §
702.1, at 555 (1999 ed.)).
Florida Statutes, section 90.702 was amended in 2013, and
now states:
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.
§ 90.702, Fla. Stat. (2013). Obviously, Dr. Evans’ specialized
knowledge, skill, experience, training, and education allowed
him to testify regarding the effects of midazolam. As noted, a
pharmacologist, by definition, is educated and trained to
understand the effects of drugs on an individual. The fact that
Dr. Evans has not personally and directly administered midazolam
or anesthesia to an individual is irrelevant as it is highly
unlikely that the witness has administered any drugs directly to
a patient as his specialty is “examining and researching the
impact of various drugs on individuals” and “to recommend and
initiate appropriate drug therapy in collaboration” with others.
19
(Supp. PCR2 V1:129). Additionally, although Dr. Evans may not
have any direct experience with patients who allegedly have
porphyria because it is such a rare disease, it was within his
area of expertise to testify as to the effect of drugs on an
individual and to make determinations based on resources,
literature, etc. used by experts in his field. Further, while
Appellant faults Dr. Evans for not relying on case studies in
support of his opinion, defense expert Dr. Zivot testified that
that a case study that would mimic an execution could never be
done and there could never be a study where 500 milligrams of
midazolam is given to a patient who has porphyria. (Supp. PCR2
V1:111).
Because Dr. Evans’ specialized knowledge would assist the
trier of fact in understanding the relevant issues, the
postconviction court acted within its sound discretion in
allowing him to testify. Even assuming that Davis could
establish that the lower court abused its discretion in allowing
Dr. Evans’ testimony, any error would be harmless because, as
will be discussed in more detail in Issue II, the other evidence
admitted at the hearing from Appellant and Dr. Zivot was
insufficient to establish Davis’ burden of proof for his Eighth
Amendment as-applied challenge to Florida’s lethal injection
procedures. This Court could disregard Dr. Evans’ testimony in
20
its entirety and Davis would still not be able to succeed on his
underlying claim. Accordingly, because the postconviction court
acted in its sound discretion in allowing Dr. Evans to testify,
this Court should reject Davis’ claim.
21
ISSUE II
THE POSTCONVICTION COURT PROPERLY DENIED DAVIS’ CLAIM
THAT HIS ALLEGED MEDICAL CONDITION WOULD CREATE A RISK
THAT FLORIDA’S LETHAL INJECTION PROCEDURE IS SURE OR
VERY LIKELY TO CAUSE SERIOUS ILLNESS AND NEEDLESS
SUFFERING AND GIVE RISE TO SUFFICIENTLY IMMINENT
DANGERS.
This Court relinquished jurisdiction in order for the
circuit court to conduct a hearing to determine “whether Davis’
alleged porphyria creates a risk that is sure or very likely to
cause serious illness and needless suffering and give rise to
sufficiently imminent dangers.” The postconviction court
conducted an evidentiary hearing on Appellant’s claim where
Davis and his expert, Dr. Joel Zivot, testified. The State
presented rebuttal testimony from Dr. Roswell Evans. After
hearing this testimony, the postconviction court denied Davis’
claim and found that Davis failed to carry his burden of proof
of establishing that he was sure or very likely to experience
serious illness or needless suffering as he would be rendered
unconscious and insensate before any possible onset of pain as
the result of a porphyria attack.
In Henry v. State, 134 So. 2d 938 (Fla. 2014), this Court
was recently presented with a similar situation involving a
death row inmate’s as-applied constitutional challenge to
Florida’s lethal injection procedures. This Court stated that
22
when reviewing a trial court’s ruling denying such a claim, this
Court uses a two-step standard of review, “deferring to the
trial court on questions of historical fact but conducting a de
novo review of the constitutional issue.” Id. at 946 (quoting
Connor v. State, 803 So. 2d 598, 605 (Fla. 2001)). The State
submits that the application of such review establishes that the
postconviction court properly denied Davis’ claim.
Contrary to Appellant’s flagrant misrepresentation to this
Court, it has never been established that “Eddie Wayne Davis
suffers from porphyria.” Supplemental Initial Brief at 11. In
fact, quite the opposite. The evidence establishes that Davis
has never been diagnosed with porphyria. Davis himself admitted
that he has never been diagnosed with this condition. (Supp.
PCR2 V1:59). Rather, Davis testified that he is currently
experiencing a “giant rash” like “something’s eating the flesh
away.” According to Davis this rash has only happened one time
before several months ago. (Supp. PCR2 V1:55-56). The State,
however, introduced Department of Corrections’ medical records
from Davis indicating that he was examined for a rash on his
left side and middle back on December 1, 1999. (Supp. PCR2
V2:288). On April 12, 2001, Davis complained he was “breaking
out again” and wanted to “get back on the Valtrex” to treat his
“hx (history) of herpes to flank area.” (Supp. PCR2 V2:289).
23
Although the postconviction court assumed for the sake of
the instant proceedings that Davis has porphyria,4 the State
submits that Davis cannot succeed on his Eighth Amendment as-
applied challenge absent proof that he actually has porphyria.
Davis has known of this possible diagnosis since at least 2000,
see Dr. Maher’s testimony at Davis’ original postconviction
proceeding (PCR1 V4:557-59, 573), and has never sought to
establish this condition until the eve of his execution.
Accordingly, given his undue delay, this Court should not
presume that Davis has such a condition.
Even assuming, however, that Davis does have some form of
porphyria, the evidence presented below does not establish that
Florida’s use of midazolam will surely or very likely cause
Davis to suffer serious illness or needless suffering or give
rise to sufficiently imminent dangers. As this Court stated in
4 In this Court’s order of June 26, 2014, relinquishing
jurisdiction, this Court noted that its decision was based on
Dr. Zivot’s affidavit that Davis allegedly suffers from
porphyria. At the hearing, the State attempted to question Dr.
Zivot on his claim that Davis “reportedly” has porphyria, but
the postconviction court prevented the State from fully
questioning the witness on his basis for this opinion, and
simply assumed for the purposes of the hearing that Davis has
such a condition. (Supp. PCR2 V1:93-99). Dr. Zivot, however,
briefly testified that he was basing his opinion on Dr. Maher’s
examination, but as has been previously noted, Dr. Maher has
never diagnosed Davis as suffering from porphyria. (PCR1 V4:557-
59, 573).
24
Henry, in order for a defendant to successfully raise an Eighth
Amendment challenge to Florida’s lethal injection procedures:
[A] defendant must show that the state’s lethal
injection protocol is “‘sure or very likely to cause
serious illness and needless suffering.’” Brewer v.
Landrigan, ___ U.S. ____, 131 S. Ct. 445, 445, 178 L.
Ed. 2d 346 (2010) (quoting Baze v. Rees, 553 U.S. 35,
50, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008)
(plurality opinion)). “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.”
Howell, 133 So. 3d at 517 (internal quotation marks
omitted). “This heavy burden is borne by the defendant
— not the State.” Id.
Henry, 134 So. 3d at 947. Applying this standard, the
postconviction court properly found that Davis failed to carry
his heavy burden under Baze of proving that there is a
substantial risk of serious harm or needless suffering to him
based on his alleged porphyria.
The testimony at the evidentiary hearing established that
Florida’s massive 500 milligram dose of midazolam will render an
inmate unconscious and insensate within the matter of a few
minutes. Even Davis’ own expert, Dr. Zivot, acknowledged that a
much smaller dose of 50 milligrams would quickly render Davis
unconscious. (Supp PCR2 V1:120-21). Dr. Evans likewise opined
that Davis would not feel pain within a few minutes after being
given a 500 milligram dose of midazolam as he would be
25
unconscious and insensate. (Supp PCR2 V1:139-41). The State
submits that it is now well established in Florida that a 500
milligram dose of midazolam will render someone unconscious
within the matter of a minute or two. See also Howell v. State,
133 So. 3d 511, 519 (Fla. 2014) (noting that defense expert Dr.
Lubarsky stated that midazolam will induce unconsciousness
within 1-2 minutes); Henry v. State, 134 So. 3d 938, 947-48
(Fla. 2014) (stating that Drs. Dershwitz and Evans testified
that when midazolam is given intravenously the heart pumps the
blood to the brain and consciousness will be lost within a
minute or two and the defendant will not be conscious to
experience any pain); Chavez v. Palmer, 2014 WL 521067 (M.D.
Fla. Feb. 10, 2014) (finding that the experts’ testimony
established that “when midazolam is properly administered in the
massive dose required by the Florida protocol, it will render
the individual insensate to noxious stimuli by placing the
individual in an anesthetic state, unable to discern pain”).
In rejecting Davis’ as-applied challenge, the
postconviction court relied on this testimony regarding the
efficacy of midazolam in quickly rendering an inmate unconscious
and found that “[t]here 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
26
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.” (Supp. PCR2 V2:314). The court’s
conclusion is supported by the evidence. While defense expert
Dr. Zivot opined that a person with porphyria would have an
accumulation of porphyrins when administered midazolam and could
suffer an acute porphyria attack,5 he could not place any time
frame on when the onset of such a porphyrin accumulation would
occur, nor could he testify as to when a possible porphyria
attack would occur. (Supp PCR2 V1:114). Dr. Zivot certainly did
not opine that such an accumulation of porphyrins would occur
almost instantly upon the administration of midazolam and result
in an adverse reaction prior to the onset of unconsciousness.
Similarly, contrary to Appellant’s assertions in his brief, Dr.
Zivot never testified that Davis was sure or likely to suffocate
on his own vomit during the execution.
5 Dr. Zivot’s opinion regarding the accumulation of porphyrins
after being administered midazolam was based on a study he read
involving chicken embryo liver cells that measured the
accumulation of porphyrins after 20 hours. (Supp PCR2 V1:103-06,
109).
27
The State’s expert pharmacologist, Dr. Evans, opined that,
even though an individual may suffer from porphyria, the disease
would not have any effect on the ability of midazolam to render
that person unconscious.6 (Supp PCR2 V1:142). Dr. Evans testified
that, even if Davis has porphyria, his condition would not
interfere with the efficacy of Florida’s 500 milligram dose of
midazolam in rendering Davis unconscious and insensate to pain
within the matter of only a few minutes. (Supp PCR2 V1:141-43).
He further opined that it was “highly unlikely” that Davis would
suffer extreme or excruciating pain as a result of a porphyric
attack. (Supp PCR2 V1:144).
Clearly, based on this testimony, the postconviction court
properly concluded that Davis failed to carry his burden of
showing that it was “sure or very likely” that Florida’s use of
midazolam would cause serious illness or needless suffering or
give rise to sufficiently imminent dangers. As this Court noted
in Howell v. State, 133 So. 3d 511 (Fla. 2014), “[i]n the lethal
injection context, ‘the condemned inmate’s lack of consciousness
6 Dr. Evans noted that the pharmaceutical literature indicates
that midazolam is a safe drug to use on persons suffering from
porphyria, and in fact, is a preferred choice of pre-anesthetic
type drugs in comparison to others. (Supp PCR2 V1:145). Defense
expert Dr. Zivot even reluctantly acknowledged that midazolam
would be better to use clinically on a patient with porphyria
than barbiturates like sodium thiopental and pentobarbital.
(Supp PCR2 V1:108-09).
28
is the focus of the constitutional inquiry.’” Id. at 517
(quoting Valle v. State, 70 So. 3d 530, 539-40 (Fla. 2011)).
Here, even assuming Davis has porphyria, the evidence
established that he would be unconscious and insensate before
any possible onset of pain from a porphyria attack. As Davis
failed to carry his burden under Baze, this Court should affirm
the lower court’s order denying Davis’ as-applied Eighth
Amendment challenge to Florida’s lethal injection procedures.
29
CONCLUSION
Based on the foregoing arguments and authorities, Appellee,
State of Florida, respectfully urges this Court to affirm the
order of the lower court denying Davis’ as-applied
constitutional challenge to Florida’s lethal injection
procedures.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
STATE OF FLORIDA
/s/ Stephen D. Ake_____________
STEPHEN D. AKE
Assistant Attorney General
Florida Bar No. 0014087
TIMOTHY A. FREELAND
Assistant Attorney General
Florida Bar No. 0539181
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, Florida 33607
Telephone: 813-287-7910
Facsimile: 813-281-5501
[email protected] [and]
[email protected] [and]
COUNSEL FOR APPELLEE
30
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the size and style of type used in
this brief is 12-point Courier New, in compliance with Fla. R.
App. P. 9.210(a)(2).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd day of July, 2014, a true
and correct copy of the foregoing has been furnished
electronically to the Clerk of the Florida Supreme Court at
[email protected]; and to Richard E. Kiley and Ali A.
Shakoor, Assistants CCRC-M, Office of Capital Collateral
Regional Counsel, Middle Region, 3801 Corporex Park Drive, Suite
210, Tampa, Florida 33619-1136, [[email protected]],
[[email protected]], [[email protected]] and
[[email protected]]; and John Aguero, Assistant State
Attorney, Polk County State Attorney’s Office, Post Office Box
9000, Drawer SA, Bartow, Florida 33831, [[email protected]] and
/s/ Stephen D. Ake____________
COUNSEL FOR APPELLEE