Saturday 22 September 2007

Mark Schwab - THE ORDER ON DEFENDANT'S MOTION TO VACATE OR STAY EXECUTION


IN THE CIRCUIT COURT
OF THE EIGHTEENTH JUDICIAL
CIRCUIT IN AND FOR BREVARD
COUNTY, FLORIDA
CASE NO. 05-1991-7249-AXXX
STATE OF FLORIDA,

Plaintiff, o


MARK DEAN SCHWAB, r

Defendant.
--------------~/
ORDER ON DEFENDANT'S MOTION TO VACATE OR STAY EXECUTION
This matter came before the Court upon the Defendant's Motion to Vacate
Sentence or Stay Execution. The Court held a case management conference as required
by Fl.R.Crim.Pro. 3.851. In attendance were Mark Gruber, Peter Cannon and Daphne
Gaylord, Capital Collateral Re~ional Counsel for the Defendant, Ken Nunnelley and
Barbara Davis, Office ofthe Attorney General and Wayne Holmes, Office of the State
Attorney. Having heard the argument of counsel and having reviewed the Court file, the
Court makes the following findings of fact and conclusions of law.
LETHAL INJECTION PROTOCOL
The Defendant filed a Motion to Vacate Sentence premised on two claims.
Claim One addresses the issue of lethal injection and whether the Department of
Corrections' protocol and procedures meet the Eighth Amendment's prohibition against
cruel and unusual punishment. Defense counsel denies they are making a per se attack on
the constitutionality of lethal injection.
Case # 05-1991-CF-007249-AXXX-XX
lilrm~ril~l~1ililllllli""'""11/11111" 1/11
010734194


State v. Schwab Case No. 05-1991-Cl-7249-AXXX
Lethal injection as a means of execution has consistently been found
constitutional by courts across the country. The Florida Supreme Court has ruled
numerous times that it finds no constitutional bar to death by lethal injection. Sims v.
State, 754 So. 2d 657 (Fla. 2000); Rolling v. State, 944 So. 2d 176, 179 (Fla. 2006);
Rutherford v. State, 926 So. 2d 1100, 1113-14 (Fla. 2006); Hill v. State, 921 So. 2d 579,
582-83 (Fla. 2006); Diaz v. State, 945 So. 2d 1136 (Fla. 2006).
The Defendant contends that, while the general process of lethal injection has not
been found unconstitutional, the specific procedures and protocol recently adopted by the
Department of Corrections fail constitutional standards as they do not protect the
Defendant against the infliction of "unnecessary and wanton pain," Gregg v. Georgia,
428 U.S. 153, 173,49 L.Ed. 2d 859, 96 S, Ct. 2909 (1976) or "involve[s] torture or a
lingering death." In re Kemmler, 136 U.S. 86, 101,2 L. Ed. 2d 519, 10 S. Ct. 930 (1890).
But see also, Louisiana ex reI. Francis v. Resweber, 329 U.S. 459,67 S.Ct. 374, 91
L.Ed. 422 (1947). "As the Court observed in Resweber: "The cruelty against which the
Constitution protects a convicted man is cruelty inherent in the method ofpunishment,
not the necessary suffering involved in any method employed to extinguish life
humanely." Id at 464,67 S.Ct. at 376." Jones v. State, 701 So.2d 76 (Fla. 1997).
As the Florida Supreme Court upheld the lethal injection process up through Diaz
v. State, 945 So. 2d 1136 (Fla.2006), the only "newly discovered evidence" upon which
the Defendant might base a claim for relief is the execution of Angel Diaz, which
occurred shortly after the Diaz decision. The Diaz execution has been referred to by the
Defendant as "botched." Mr. Diaz took longer than previous defendants to die and some
experts have testified in various forums that he suffered pain prior to that death. It is Mr.
2 001.240


State v. Schwab Case No. 05-1991-Cl'-7249-AXXX
3
Schwab's claim that the methods used by the Department of Corrections were
demonstrated to be inadequate to insure a prompt and pain-free death and that the current
DOC procedures do not sufficiently remedy the problem.
Following the Diaz execution, Governor Jeb Bush temporarily suspended
executions and appointed an executive commission to study the issue. The Commission
issued a report to Governor Crist on March 1, 2007. In response to its recommendations,
the Department of Corrections has instituted new protocol for executions. The Governor,
apparently satisfied that the new protocol provides sufficient safeguards to insure
constitutional standards are met, signed the death warrant for Mr. Schwab in July 2007.
The Defendant claims that there is "foreseeable risk" of unnecessary and extreme
pain if the Department is permitted to carry out his execution under present protocol. The
Florida courts have not adopted the standard that there be no "foreseeable risk" of pain in
executions. Rather, as noted in Jones, Id., the Eighth Amendment does not compel the
State to ensure that no suffering is involved in the extinguishment of life or even that the
State guarantee an execution will proceed as planned every single time without any
human error. As the Court stated in Buenoano v. State, 565 So. 2d 309 (Fla. 1990),
following a botched electrocution, "one malfunction is not sufficient to justify a judicial
inquiry into the Department of Corrections' competence."
The botched Diaz execution, according to the Governor's Commission, resulted
because "venous access at the time of the execution was improperly maintained and
administered." (Governor's Commission on Administration of Lethal Injection, p. 8).
Some ofthe chemicals were accidentally administered subcutaneously, rather than
intravenously. The Commission concluded that, based on the testimony it heard, "it is
3 001241


State v. Schwab Case No. 05-1991-Cl'-7249-AXXX
impossible for the Commission to reach a conclusion as to whether inmate Angel Diaz
was in pain." It made recommendations as to changes needed in the Department's
protocol and training to ensure that executions are carried out humanely.
The parties have filed in this case the new protocols established by the
Department of Corrections to address the concerns of the Governor's Commission and
the concerns of Judge Angel in the Circuit Court of Marion County, following hearings
he has conducted in State v. Lightbourne, Circuit Court Case No. 1981-170-CF-A-Ol.
The Court, having reviewed the submitted protocols, finds that the Defendant has not
established the need for an evidentiary hearing to review the Department's protocol and
training. The Defendant has not provided the Court with any reason to believe that the
new protocol does not substantially meet the criteria set by the Governor's Commission
or that the protocol will not be carried out. He was not provided reason to believe DOC
personnel will not be appropriately trained or that future executions will likely result in
the Diaz problem of subcutaneous injection, as the recently adopted protocol requires a
venal assessment of an inmate a week prior to his scheduled execution to ascertain venal
access. The protocol also provides for mandatory training and practice sessions.
The Defendant argues that the execution by lethal injection require medical
personnel, sophisticated medical equipment and protocol appropriate to a clinical setting
to carry out a constitutionally valid death by lethal injection. The Court rejects this
argument. In a medical clinical setting, the personnel, equipment and procedures are
designed to protect the life of the patient. In the DOC setting, the purpose is to terminate
the life of a condemned person in a humane manner without intentionally inflicting pain.
If the Defendant's premise is correct, there could be no executions by lethal injection
4 001242

State v. Schwab Case No. 05-1991-Cr-7249-AXXX
because persons working in recognized medical fields will not participate in taking life,
as the Defendant has stated in his Motion.

While the Court is required to accept as true the facts alleged in a Motion to
Vacate if it denies that Motion without an evidentiary hearing, most of the "facts" alleged
in the Motion relate to the problems with the Diaz execution. As the protocol has
changed, the Court is not convinced those facts are relevant to the present protocol. The
Defendant has not made specific factual allegations as to how the new protocol will result
in a violation of the Eighth Amendment. He speculates as to potential flaws in the system
and provides the affidavit and report of a person identified as a "quality assurance expert"
to point out possible gaps in the protocol that could result in problems during execution.
The Court surmises that any set of procedures describing the processes for carrying out
any complex activity could be analyzed to reveal contingencies not explicitly provided
for and no set of procedures can ever entirely eliminate the factor of human error.
It is the function of the executive branch to carry out the sentences of the courts of
this State, including executions. The Florida Supreme Court affirmed this separation of
powers in Sims v. State, 745 So. 2d 657 (Fla. 2000), finding that "determining the
methodology and chemicals to be used are matters best left to the Department of
Corrections." rd. at 670. The Sims Court further stated that "testimony concerning the list
of horribles that could happen if a mishap occurs during execution does not sufficiently
demonstrate that the procedures curret:t1y in place are not adequate to accomplish the
intended result in a painless manner." rd. at 668. Although the procedures in effect at the
time ofthe Sims ruling have been updated and revised, as discussed above, the principle
remains that the Department is entrusted with developing adequate protocol, revising as
5 001243


State v. Schwab Case No. 05-1991-Cr"7249-AXXX
necessary to meet evolving societal concerns and that the mere possibility of human error
in the process of execution does not render the current protocol inadequate.
The Defendant has argued that Sims is no longer controlling, as signaled by the
Florida Supreme Court's scheduling calendar. The Supreme Court has scheduled oral
arguments in Schwab and Lightbourne for the same date in October of this year. This
Court cannot read the mind ofthe Supreme Court in its scheduling decisions, but
suggests that it was possibly a matter ofjudicial economy, as the Supreme Court was
aware that challenges to the lethal injection protocol would be made in both cases. This
Court cannot assume that the Supreme Court intended for this circuit court to overturn or
rewrite that protocol. As this Court is bound to follow the precedents of the Florida
Supreme Court until that Court or the United State Supreme Court overturns or modifies
that precedent, it is bound by Sims and progeny. It will not attempt to read tea leaves and
guess what is intended by the scheduling docket or the footnote in Darling v. State, --So.
2d ---2007 WL 2002499,32 Fla. L. Weekly S486 (Fla. July 12,2007), referenced in the
Defendant's Motion at p. 6. It finds that Sims upholds the right and responsibility of the
Department of Corrections to establish protocol for humane executions. While it agrees
that judicial oversight of the protocol is appropriate, the Court does not find that judicial
economy would be served by holding a hearing in this matter on the same issue which
has been extensively explored by Judge Angel in Lightbourne. The parties have
stipulated that the Lightbourne hearing testimony may be judicially noticed in this case,
but the Court has deliberately elected not to take judicial notice at this time and has not
reviewed the evidence presented therein.
6 001244

State v. Schwab Case No. 05-1991-Cr-7249-AXXX
The Court therefore finds that the Defendant has alleged no facts :which require it
to hold an evidentiary hearing on his claim that current DOCprotocol might be found to
violate his constitutional rights.
NEWLY DISCOVERED NEUROLOGICAL EVIDENCE
In Claim II, the Defendant asserts that he has newly discovered evidence with
regard to his mental state, namely that recent neuropsychological testing reveals he
suffers from brain impairment and that new scientific findings will show that this brain
impairment had a direct causative effect on his criminal behavior.
The Court finds that the Defendant's claim is procedurally barred. Other than the
general advance of the science of neuropsychology, he presents no reason why he could
not have presented mental health or brain injuries claims when he filed his original post-
conviction motion. The Court held an evidentiary hearing on that motion and denied
relief. The denial was affirmed on appeaL Schwab v. State, 814 So. 2d 402 (Fla. 2002).
There will always be advances in science and experts available to reanalyze what earlier
experts concluded. But where the Defendant failed to raise the issue of neurological
damage in his original defense or his first post-conviction motion, he is precluded from
raising it now.
Even if the Court were not to conclude that this issue was procedurally barred, it
finds that the Defendant failed to sufficiently plead the matter. "There are two
requirements that must be met in order to set aside a sentence because of newly
discovered evidence. First, the asserted facts 'must have been unknown by the trial court,
by the party, or by counsel at the time of trial, and it must appear that defendant or his
counsel could not have known them by the use of diligence.' Scott v. Dugger, 604 So.2d
7 001245


State v. Schwab Case No. 05-1991-Cl'-7249-AXXX
465,468 (Fla. 1992) (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979), abrogated
on other grounds by Jones v. State, 591 So.2d 911,915 (Fla.l991». Second, 'the newly
discovered evidence must be of such nature that it would probably produce an acquittal
on retrial.' Scott, 604 So.2d at 468 (quoting Jones v. State, 591 So.2d 911, 915
(Fla. 1991». This 'standard is also applicable where the issue is whether a life or death
sentence should have been imposed.' Id. (citing Jones, 591 So.2d at 915). "_Miller v.
State, 926 So.2d 1243, 1258 (Fla. 2006).
As to the first prong of the test, the Defendant has alleged that the fact of his brain
damage was not known at the time of trial and that, even had it been, the scientific
community has only recently recognized the impact of front lobe damage on sexual
behaviors. The Defendant has provided the Court with two journal articles which discuss
the subject of brain damage in sexual offenders, but neither article affirmatively asserts
that this damage causes such crimes as committed by Mr. Schwab.
But more importantly, even if the Defendant establishes that he has frontal lobe
damage and there are new scientific theories as to its impact on behavior, he fails to meet
the second prong of the test. He does not allege that this evidence was of such a nature
that it would probably cause an acquittal, or in this case, have caused the trial court to
impose a life sentence rather than death.
As is discussed in Judge Richardson's extensive Judgment and Sentence, the trial
court considered all the mental health testimony offered by the Defendant and the State.
Headdressedthestatutorymitigation ofs.921.14I(6)(B)and(F),Fla.Stat.1991. He
concluded that the Defendant was a "mentally disordered sex offender." (Exhibit A,
Judgment, p. 8). He found that the Defendant's ability to conform his conduct to the
8
001246

Signature of Charles M. Holcomb, Circuit Court Judge
ou


State v. Schwab Case No. 05-1991-Cr-7249-AXXX
requirements of the law was "substantially impaired." (A, p. 11). The Court went on to
state that "having found this statutory mitigator to exist, it must be given some weight."
The trial court clearly recognized that the Defendant had mental health problems
and was possibly not entirely able to control his behavior. He gave this factor "some
weight." He also stated that "the three aggravating circumstances proven beyond every
reasonable doubt are entitled to great weight." (A, p. 23). He admitted that he did know
what caused persons to become sexual deviants but that, whatever the reason, the
"mitigating factors have been given little weight by the court." (A, p. 24). He concluded,
"in weighing the aggravating and mitigating circumstances, the Court finds that anyone
ofthe three aggravating circumstances outweighs all mitigating circumstances."
(A, p.24).
Thus, the "newly discovered evidence" that persons with frontal lobe damage may act
sexually inappropriately would not be the type of "new" evidence that would probably
have changed the trial court's mind. The Defendant has not demonstrated or even alleged
that had the trial court been given additional information about frontal lobe injury, it
would have considered this as mitigator that outweighed the three aggravators it used to
impose the death penalty. Relief on this claim is denied.
THEREFORE it is ORDERED and ADJUDGED
The Defendant's Motion to Vacate Sentence or Stay Execution is DENIED.
The Clerk of the Court shall immediately transport the record of these proceedings
to the Supreme Court of Florida. No Notice of Appeal shall be required.
DONE AND ORDERED in Titusville, Brevard C
~v.st: 2007.
9 001247


State v. Schwab Case No. 05-1991-CI·-7249-AXXX
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was provided by facsimile to Mark
Gruber and Daphne Gaylord, Capital Collateral Regional Counsel, Middle District, 3801
Corplex Drive, Suite 210, Tampa, FL 33619, fax (813) 740-3554, Wayne Holmes,
Assistant State Attorney, fax (321) 617-7542, Ken Nunnelley and Barbara Davis, Office
of the Attorney General, 444 Seabreeze Blvd., Fifth Floor,~Beacb, FL 321183951,
fax (386) 226-0457 this 1711
day of ~ 2007.
~~.
Marcia Newell
Judicial Assistant
Eighteenth Judicial Circuit
Titusville Courthouse
506 S. Palm Ave.
Titusville, FL 32796
10
001248

)') No! ~ulta~le ~or Ima~in~ ),~~

se. The state has not requested that the Court consider this
issue.
STATUTORY MITIGATING CIRCUMSTANcgS
FLORIDA S'1'A~trrEB 92.l.1~1(§)
CAl T1IB DEJ'BNDANT HAS NO 8.IGNIP'ICAN'I' HISTO,RY
01" PRIORI. CRIXIllAL ACTIVITY.
This. mitigating circumstance has not been reasonably
established by the greater weight of the evidence. The defendant
has been previously convicted of two counts of sexual battery.upon
Than Meyer in case No. 87-3147"CFA. These \tIere crimes of violence
in that the defendant used a knife to force himself on the victi~.
Such criminal conduct constitutes a significant history.
(B) TO CAPITAL .FELONY WAS· COlOUTTBD WHILE
THE DBJ'2NDAJl'1' WAS UNDER THB
INJ'LtlENCEOF' ErrRBllB MENTAL OR
EMOTIONAL DISTURBANCI.
This . mitigating cfrcumstance has not been reasonably
established by the greater weight of the evidence.
The facts sho.w t·hat the defendant is a mentally disordsl;sd sex
offender. He is antisodial and dangerous to male children ~
However, he was not und~r the influence of any extrem~ mental oi
emotionaldisturba·nce on the date of the crime. The defendant was
not psychotic, schizophrenic or paranoid. He is above average in
his intelligence level and was in touch with reality.
His emotional state on the day of the crime was described by
his mother. Incredibly, the defendant visited with his ~other on
his way to kidnap Junny Rios Martinez! The defendant and hls
mother had a short conver-sation. His mother did not notice
anything unusual about the defendant. In fact she indicated that
s
riETVRN TO: CRIMINAL LAW
DEPARTMENT
R.C. WINSTEAD. JR. .
Ito46J0
BK 32 I3?G282 I CLERK OF CIRCUIT COURT .
. .,
Exhibit "A" 001249

. ,: ~ot ~uM~le for Ima~i~~
they both felt more relaxed because it did not look like the
defendant t $ probation ~ould be violated. The defendant told his
mother that he plannQd to leave the state, but that he would obtain
permission from his probation officer before leaving town.
This court had the ~opportunity of ·1 istening to lIlany hours of


! biped conversations o~ the· defendant. These conversations involved

.l both pre-arres~ and post-arrest situations. Notwithstanding the
.,
fact that ~he defendant had to be under stress when these
conversations occUrred, there was no indication that the defendant
.was' u.nder the· influenca of any mental or emotional disturbanc~.
.;
i The defendant was cl~~r thinking and articulate. He was aware of

,! the fact that the police were looking for bim and that he was in
serious trouble~ Hew-as able to fabricate a,nd communicate the



r "Donald" de·fense in great detail to family and law enforcement.

Prior to the ~ommission of the sUbject crimes, the defendant
.' attended group therapy sessions with Dr. Dun.can Bqwen. No evidence
or testimony was' presented from Dr. Bowen supportinq this·
mitigating circumstance.
The facts show that the defendant was able to relate well with
people. While in prison, the defendant performed his daily tasks
;
I
! ina proper manner. He was able to convince the victim's family.
I
that he was a n.ewspaper relJorter and surf-magazine representative.
He was able to gain the confidence' and trust of the victim 's
family.
This Court finds that at the time the defendant murdered Junny
Rios Martinez, he was not under the influence of extretne mental or
.. 9 nElURN TO'. ORIMINAL LAW
DEPARTMt::'IT
R C WINSTF..l\D, JR. R1'

CLERK OF CIRCUIT COU IJ04651


emotional
Nm ~ul!aDle rorIma~i~ l3
disturbance.
(C) 'lin VIC'l'IM WAS A PARTICIPAN'r IN THE
DB::rENDA1rr'S CONDUC'l' OR CONSENTED TO
T1fS ACT.
This mitigating circumstance does not apply. The defendant
has not requested that the Court consider this isaue.
(D) TllBDEJ'ENDANTWAS ~ ACOOKl'LICB IN
CAl'I'rAL .FELONY COKHI'r'l'ED BY NJOTBHR
.PDSON AND HIS PARTICI~A'I'ION WAS
RELATIVELY MINOR.
This mitigating circumstance has not been proven and does not
apply. This Court has rejected the "Donald" defense and
Bpecificaliy finds that "Donal.d"·doe~ not exist in this case.
(E) TBB DEJ'ENDANT ACTED UNDER ErrREJlB DUREB~
OR UNDER '.Mlll SUBSTANTIAL DOMINATION
OJ.AN01asaPaRSON.
This mitiqating circumstance does not exist in this case. The
Court has completely rejeoted the "Donald" defense.

(F) 'l'BE CAPACITY 01" TJlE DElJ'ENDAN'1'· '1'0
APPRBCtAT! TaB CRIMINALITY or HIS
CONDUCT OR '1'0 C0N70RH HIS CONDUCT TO
THB REQUIR~BNTS OF LAW WAS
SUBSTANTIALLY IMPAIR~D.
The.re was no evidence presented that sho.wsthe defendant IS
. ability to appreciate the criminal nature of his conduct was
substantially impaired. In fact, the proof is all to the contrary.
After the murqer, the defendant made an effort to hide the body and
flee from the State. In one taped telephone conversation with his
aunt, the defendant acknowledged that he could be facing life in
prison or the death penalty for these crimes. When he became aware
of the fact that the police were after him, he contrived the
complex ~Donald made me do it" defense. These are all actions of
10
AETVRN TO: CRIMINAL.LAW
DEPARTMENT
(II () 4o,....~ 2
Re. WINS-I-EAD, JR. u B~ ~ 2 I 3?G 2823 CU~RI<>

in prison, the
defendant sought entry into the state sponsored mentally disordered
sex offender program, because he knew he had a problem. The
defendant's ability to appreciate the criminality of his conduct
was further established 'by the expert testi~ony.
However, the qre~ter weight of the evidence does support the
a person who knows
•i
conclusion that thadsfendant I s ability to conform his conduct to,
the requir,ements of la~ was substantially impaired. HaVing found
this statutory mitigatinq circumstance to exist, it cannot be
dismiss,ed, and mus~ be given some weig'ht. However,
i the relative weight to be given is within the, province of this
I
;.1 Court. CaJDpbell y'. StAtO, 571 So. 24' 932 (71a'.1991) ~
I The defendant meets the criteria for amentally disordered sex
,j
,!offender. He is a person who is not insane, but who has a mental
i
disorder and is dangerous to others because of 'a propensity to
commit deviate Baxual acts. ,The deflilndant ,enjoys' sadism which
't'urther ,supports his faali:ogs of pO'ier and control over his child
victi:ms. The use of = k~if9 and th9 slo,., death associated with
strangula.tion or suffocation are consistent with the defendant IS
sad~stic·disordar.
The' extent to which the defendant's ability to conform his
conduct to law is unclear to the-court. In the instant case, the
defendant shoWed significant restraint. He developed and nurtured
a plan to gain the trust ot the victim ~o that he could lure him
away from his home when the time was right. Over a period of
several weeks~ the defendant continued to relate with th~ victim
11
riETUAN TO: CRIMINAL LAW
DEPARTMENT
R.C. 'N1NST[;.;'\I), JR. () () 4653
ax 32 I 3PC 282.4 CLERI

rage or sexual
The defendant patiently bided his time and contriv~d his
plan of attack. In the past case involving victim Than Meyer, the
defendant followed much the same coursa of conduct.
This Court accepts I the . expert opinion of Dr. Samek, that if
given the. right stimulus, the defendant would be able to stop a
sexual advance/even in the late stages of an attack.
The defendant is a predator of young male children. He
clearly knows right from wrong. The defendant is manipulative arid
c~pable of gross distortions of truth. Thus, the information
provided by the defendant to' the Qxamining experts is suspect.
Dr. Samek diaqnosed the defendant as an antisocial rapist
murderer. This court ac6epts that diagnosis as fact ~nd hereby
., reject~ other expert opinion to the contrary. Notwithstanding t.he
testimony of Dr. Berlin and Dr. Bernstein, the evidence. indicates
·that. the defendant may be "unwilling" rather than "unable". to
control his desires. The defendant may get such enjoyment out of
sadistic o~x UpUIl. children, that he is willing to acce!-';' "';.c::
consequences of his acts.
It is interesting to note that while the defendant wa&
planning the sUbject crime, he was on probation for the Than Meyer
rape. As a part of this probation, the defendant was required to
participate in a sex offender program presented by Dr. Duncan
Bowen. The defendant had in fact attended a group therapy session
a few days before the abduction of Junny Rios Martinez. Dr. Bowen
was not called as a witness. The record is void of any proof that
his family.·
12
"~RN TO: CRIMINAl LAW·
DEPARTMENT .
R.C. WINSTEAD, JR. . \}() 465 /1
CLERK OF CIRCUIT COURT
BK32/3?G2825

the defendant sough: theN~~~~j~le£~r Ipo~@ tO~~VOld the ~~ject

crimes. Clearly, the d~fendant knew what he was about to do. He
hajj a professional sex therapist available to talk to. He chose to
k~ep his secret and follow through with the plan.
eG) TltB AGE 0"1 THli: DEi'BN,DAN'l' AT THE. TIKE
OF THE CR.IME.
The defendant's age at the time of the offense was t.wenty-two.
He had moved out of his mother's house in 1987 and lived on his own
until he was arrested in July 1987 for the sexual battery of Than
Meyer. The defendant spent the next three years or so in an adult
..
prison. While in pri50n, the defendant performed the job duties of
an adult. He had no disciplinary problems in the prison system and
was able to oonform to the adult rules of the' prison. The

.defendant's post"'prison association with teenagers is cons.istent
with 'his desire to dominate or contro;J.. rather than an i.ndication of
a low level of maturity.

This. mitigating circumstance. has not been proven by the
greater weight of the evidence.
NQN-8XATVTORY MITIGATING CIRCcrxSTANCES

The defendant is allowed great latitude in prtasenting evidence
which he feels constitutes non-statutory mitigating circu:mstances.
When addressing mitigating circumstances , the trial jUdge must
expressly evaluate in its written order each mitigating
circumstance proposed by the defendant to determine whether it is
.supported by the evidence and whether, in the case of non-statutory
factors, i~ is truly of a mitigation nature. Roge~s v. state, 511
So.2d 526 (Fla.lgS7): Camphell v. state, 577 So.2d 932 (Fla.1991).
13
AEnJRN TO: CRIMINAlLAII{ I
DEPARTrvlENT
R.C. WINSTEAD JR
BK 321 3FG 2826 CLERK OF CIRCUIT COURT. I) () 4655

while in prison.
Th~ defendant proved
evidence. However the Court does not consider this a mitigating
circ1,UIlstance.
3~) Alternative forms of treatment are availabie for persons
who sut"fer from· the defendant's mental illness.
I
The defendant proved this fac.t by a greater weight of the
evidence. However, the Court does not consider this a mitigating
circumstance.
40) The defendant weh·t, to Dr. Duncan Bowen's weekly sessions
as . required . by the terms of his probation. However, the
· ! progressivg nature of the defendant's mental illness could not
..',!
·!
be· treated in this non-intensive o.ut-pati-ent setting.
·.
• II
"1 The defendant did, in fact attend the sex offender program of
·,
,
Dr. Duncan Bowen. He was requir·ed to do so by his probation
officer. HoweVer, the defendant roade no effort tog~in any benefit
.1
from that· program. At the same time he was in therapy I he waG
associating with young boys and planning the abduction and rape of
.;
.runny Rios Martinez . Had the defendant confided in Dr. Bowen,
action could have been taken to prevent tragedy. This non<>
statutory mitigating. circ:;wnstance· has not been .proven by the
greaterweiqhtof the evidence.

SUMMARY
.
:
The three statutory agg;ravating circumstances proven beyond
every reasonable doubt are entitled to great weight by this Court.
The aggravating circumstances all relate to violent crimes by the

rleT1JAN YO: CRIMINAL LAW
•'. DEPARTMENr .
BK 32 \3i~G 283 6
R.C. WINSTEAD, JR.
~
CLERK OF CIRCUIT COURT


,~nt perpetuated against children. In the case of Junny Rios
~~tinez, the crimes involveacapital sexual battery and kidnapping
ot ~ child eleven years of age. The facts show that death was
caused by strangulation or suffocation of a conscious child.
\ On the other halld,' the one statutory mitigating circ~stance
".j
I
. and the non-statutorx .mitigating circumstance found to exist are
,
.
~ntitlQdto little weight.
~ether the defendant is "unable" or "unwilling" to conform
his conduct to iaw is open for d9bate.
Whether the dafen9,ant inte.ndedto help himself or the victim's
! family in leading polica to the child's·body is not certain.
.\
: 'j Whether the de!endant's unstable family life contribUted to
.i
I
, i! his sexual deviance is also in question. Experts differed on
causation. Are. sexual deviate'ernade or are they born? The answer
is unc.lear to this' Court. However, for these reasons' the
mitigating circumst:.anoes have been givenlittle weight by t.his
Court.
Ln weighing the aggravating ~~d mitigating circunstances, the
':':-:::-": finds that any aneof t:hl;three aggravat lng circumstances
outweighs all mitigating circWilstances.
SENTENCE
MARl< 'DEAN SCHWAB, having been given thQ opport:..unity to be heard and show legal cause why jUdgment and sentence shOUld not now be imposed and to offer matters in mitigation, and no legal cause


having beens-hown to preclude imposition of. judgment and'sentence,


.~) r1EnJRN TO: CRIMINAL LAW

,..•. DEPARTMENT

.... CLERK OF CIRCUIT COURT

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