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IN THE SUPREME COURT OF FLORIDA
CASE NO. SC07-2138
MARK DEAN SCHWAB,
Appellant,
v.
Death Warrant Signed
Execution Scheduled for November 15, 2007 at 6:00 p.m.
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE EIGHTEENTH JUDICIAL CIRCUIT FOR BREVARD COUNTY,
STATE OF FLORIDA
ANSWER BRIEF OF APPELLEE
BILL McCOLLUM
ATTORNEY GENERAL
KENNETH S. NUNNELLEY
SENIOR ASSISTANT ATTORNEY GENERAL
Fla. Bar #998818
444 Seabreeze Blvd., 5th FL
Daytona Beach, FL 32118
(386) 238-4990
Fax # (386) 226-0457
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
TABLE OF CONTENTS...............................................i
TABLE OF AUTHORITIES............................................i
STATEMENT OF THE CASE...........................................1
STATEMENT OF THE FACTS..........................................1
SUMMARY OF THE ARGUMENTS........................................2
ARGUMENTS
CLAIM I –NEWLY DISCOVERED EVIDENCE.........................2
CLAIM II: THE "NEWLY DISCOVERED EVIDENCE" CLAIM REGARDING DOC AND FDLE TRAINING LOGS................................12
CONCLUSION.....................................................17
CERTIFICATE OF SERVICE.........................................17
CERTIFICATE OF COMPLIANCE......................................17
i
TABLE OF AUTHORITIES
CASES
Ake v. Oklahoma,
470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985) .........................................................4
Allen v. Butterworth,
756 So. 2d 52 (Fla. 2000)...................................................................................................17
Asay v. State,
769 So. 2d at 986 .................................................................................................................7
Booker v. State,
503 So. 2d 888 (Fla. 1987)...................................................................................................8
Buenoano v. State,
565 So. 2d 309 (Fla. 1990).................................................................................................17
Burns v State,
609 So. 2d 600 (Fla. 1992).................................................................................................11
Christopher v. State,
489 So. 2d at 25.4 ................................................................................................................8
Darling v. State,
32 Fla. L. Weekly S486 (Fla., July 12, 2007) ....................................................................16
Diaz v. State,
945 So. 2d 1136 (Fla.), cert. denied, 127 S. Ct. 850,
166 L. Ed. 2d 679 (2006) ...............................................................................................6, 10
Foster v. State,
614 So. 2d 455 (Fla. 1992)...................................................................................................8
Hertz v. State,
941 So. 2d 1031 (Fla. 2006).................................................................................................7
Jones v. State,
591 So. 2d 911 (Fla. 1991)...................................................................................................6
Jones v. State,
709 So. 2d 512 (Fla. 1998).............................................................................................5, 10
ii iii
Lightbourne v. McCollum,
32 Fla. L. Weekly S687 (Fla. Nov. 1, 2007) ......................................................................13
Porter v. State,
653 So. 2d 374 (Fla. 1995)................................................................................................10
Rutherford v. State,
940 So. 2d 1112 (Fla. 2006), cert. denied, 127 S. Ct. 465,
166 L. Ed. 2d 331 (2006) .....................................................................................................6
Schwab v. Florida,
513 U.S. 950 (1994) .............................................................................................................9
Schwab v. State,
32 Fla. L. Weekly S697 (Fla. Nov. 1, 2007) ..............................................................1, 7, 16
Schwab v. State,
814 So. 2d 402 (Fla. 2002)...................................................................................................5
Sireci v. State,
773 So. 2d 34 (Fla. 2000)...................................................................................................10
Spaziano v. State,
545 So. 2d 843 (Fla. 1989)...................................................................................................8
Tafero v. State,
524 So. 2d 987 (Fla. 1987)...................................................................................................8
White v. State,
32 Fla. L. Weekly S494 .......................................................................................................6
Wright v. State,
857 So. 2d 861 (Fla. 2003).................................................................................................10
MISCELLANEOUS
Fla. R. Crim. P. 3.850 ................................................................................................................8, 12
Florida Rule of Criminal Procedure 3.851......................................................................................1
PRELIMINARY STATEMENT
On July 19, 2007, this Court directed all proceedings in this case be concluded by August 31, 2007, and set a briefing schedule for "any proceeding that may come before this Court." Despite that explicit order, Schwab waited until after this Court affirmed the denial of relief on his successive post-conviction motion before filing a second such motion, even though the claims contained in that motion could have been raised before August 31. In addition to the reasons stated herein, Schwab’s second successive motion should be denied because it is in violation of the express schedule set by this Court. The State adopts all findings in the Circuit Court’s November 13, 2007, order. The State also advises this Court that on November 15, 2007, the Eleventh Circuit Court of Appeals vacated a stay granted by the Middle District. (Attachment "B").
STATEMENT OF THE CASE AND FACTS
On November 1, 2007, this Court affirmed the denial of Schwab’s first successive motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.851. Schwab v. State, 32 Fla. L. Weekly S697 (Fla. Nov. 1, 2007). This Court denied Schwab’s motion for rehearing on November 7, 2007.
On the afternoon of November 9, 2007, Schwab filed his second successive motion for post-conviction relief raising two claims: a "newly discovered evidence" claim relating to mental
1
state evidence, and a "newly discovered evidence" claim relating to lethal injection. The State filed an answer to the motion on November 12, 2007, and, on the morning of November 13, 2007, the Brevard County Circuit Court held a case management conference pursuant to Rule 3.851. At approximately 5:30 PM on November 13, 2007, Brevard County Circuit Judge Charles Holcomb entered an order denying relief. This appeal follows.
SUMMARY OF THE ARGUMENT
Summary denial of both of Schwab’s successive claims was proper. There is no basis for an evidentiary hearing, and the files and records conclusively demonstrate that there is no basis for relief.
ARGUMENT
CLAIM I –NEWLY DISCOVERED EVIDENCE
On pages 2-14 of the second successive motion, Schwab set out what he described as "newly discovered evidence" that Dr. Samek, the State mental health expert at trial, "did not have access to the wealth of data then available." (Motion at 6). Schwab argued that the State hired Dr. Samek for a "limited purpose" and, because he was not given the same information as defense experts Bernstein, Berlin and Shaw, the Circuit Court erred in basing its sentencing opinion on Dr. Samek’s testimony. In support of this claim, Schwab attached an affidavit from Dr. Samek which states that:
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(1) Dr. Samek continues to feel that in such an unusual and dramatic situation [Schwab] would have been able to conform his conduct to the requirements of the law; but
(2) Dr. Samek also believes Schwab was suffering from an extreme mental disturbance (DMSO and panic about being caught violating his probation) to such an extent his ability to conform his conduct to the requirements of the law was substantially impaired.
(Motion at 9). Schwab claimed that because this opinion is in such "stark contrast" to the sentencing order, the Circuit Court must vacate the death sentence and afford Schwab a new penalty phase.
This claim is not a basis for relief for several independently adequate reasons, any one of which, standing alone, is an adequate and independent State law ground for denial of relief. Further, the files and records conclusively show that Schwab is not entitled to relief on this claim and no evidentiary hearing is necessary.
THE CIRCUIT COURT’S ORDER1
The collateral proceeding trial court denied relief on this claim finding that it met neither prong of the Jones newly discovered evidence standard. Order, at 9. The Court found that the evidence is not newly discovered, and, further, that the evidence at issue would not change the outcome at sentencing.
A. This Claim is Procedurally Barred.
1 The order of the Circuit Court is attached hereto.
3
Florida law is settled that claims that have previously been raised in a postconviction relief motion, or that could have been but were not raised in a prior postconviction relief motion, are subject to a procedural bar to further litigation of those claims. This claim overlaps both procedural bar rules, and summary denial was proper for that reason.
In his first postconviction appearance before the Circuit Court, Schwab raised various mental state claims, and this Court will recall that no evidence was presented on those claims, despite the Court’s extension of the hearing to allow Schwab to do so. This Court affirmed, stating:
Schwab next contends that his counsel was ineffective for failing to ensure that Schwab had access to a competent mental health expert for the purpose of evaluating, preparing, and presenting mitigation evidence for the defense. See Ake v. Oklahoma, 470 U.S. 68, 83, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985); see also Mann, 770 So. 2d at 1164. The trial judge found that Schwab presented no evidence to support this claim. We agree. Ake requires that a defendant have access to a "competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83. Schwab's counsel presented Dr. Bernstein, an expert in psychological evaluation, who testified as to mental mitigation evidence at the penalty phase. Dr. Bernstein testified that in conducting his evaluation he interviewed Schwab twice and interviewed Schwab's mother once. Dr. Bernstein conducted a mental status examination and lengthy psychological tests, including the Minnesota Multiphasic Personality Inventory (MMPI) and the MMPI II, among various others. Dr. Bernstein also testified that he reviewed and relied on the videotaped opinions of Dr. Fred Berlin and Dr. Ted Shaw in forming his diagnosis of Schwab. Dr. Berlin and Dr. Shaw, experts
4
in the diagnosis and treatment of mentally disordered sex offenders, interviewed and evaluated Schwab. Dr. Berlin gave a formal sexual disorder diagnosis, and Dr. Shaw provided information concerning the potential benefits Schwab could have received had he been admitted to certain treatment programs. Portions of these videotapes were presented to Judge Richardson. On the basis of this evaluation, Dr. Bernstein diagnosed Schwab as a pedophile operating at a regressed level of maturity who exhibited violent sexual deviant behavior. Schwab's counsel performed the essential tasks required by Ake. See Mann, 770 So. 2d at 1164. Therefore, we affirm the trial court's denial of this claim.
Schwab v. State, 814 So. 2d 402, 413-414 (Fla. 2002). More recently, Schwab raised the issue of "new" mental mitigation evidence, the Circuit Court denied relief, and this Court affirmed, stating:
In his second claim for relief, Schwab argues that his sentence of death is constitutionally unreliable based upon newly discovered evidence of neurological impairment and a connection between brain pathology and sexual offense. Schwab submitted, as attachments to his rule 3.851 motion, a report by Dr. Hyman H. Eisenstein, Ph.D., a neuropsychologist, which concluded that Schwab suffers from organic brain impairment in the frontal lobe of the right brain, and two recent scholarly articles regarding brain anatomy and sexual offense.
To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. 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. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). If the defendant is seeking to vacate a death sentence, the second prong requires that the newly discovered evidence would probably
5
yield a less severe sentence. See Jones v. State, 591 So. 2d 911, 915 (Fla. 1991). Claims in successive motions may be denied without an evidentiary hearing "[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief." White v. State, 32 Fla. L. Weekly S494, S495 (Fla. July 12, 2007) (citing Fla. R. Crim. P. 3.851(f)(5)(B)).
We affirm the circuit court's holding that Schwab's claim regarding neurological impairment is procedurally barred because it could have been raised in Schwab's initial postconviction proceeding. The record reveals that Schwab repeatedly alleged that he suffers from brain damage in his initial postconviction motion. The trial court granted Schwab an evidentiary hearing on the claims that included brain damage allegations, and Schwab presented no evidence regarding his brain damage. Schwab had an opportunity to pursue this topic as potential mitigation and failed to do so. Thus, he is now procedurally barred from doing so.
As for Schwab's argument that he is entitled to a new trial due to two recent scientific articles regarding brain anatomy and sexual offense, this Court has not recognized "new opinions" or "new research studies" as newly discovered evidence. Cf. Diaz v. State, 945 So. 2d 1136, 1144 (Fla.) (holding doctor's letter discussing lethal injection research was not newly discovered evidence because author's conclusions were based on data from 1950), cert. denied, 127 S. Ct. 850, 166 L. Ed. 2d 679 (2006); Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006) (holding American Bar Association report published in 2006 was not newly discovered evidence because it was "a compilation of previously available information related to Florida's death penalty system"), cert. denied, 127 S. Ct. 465, 166 L. Ed. 2d 331 (2006).
Even if the articles were "newly discovered" evidence, we agree with the postconviction court that Schwab has not satisfied the second Jones prong. Jones, 591 So. 2d at 915. The alleged newly discovered evidence is not of such a nature that it would probably yield a less severe sentence on retrial. While the sentencing judge found that the trial evidence established the
6
2Lest there be any doubt about the preclusion on bringing in new mental state experts in postconviction litigation, in Hertz v. State, 941 So 2d 1031, 1041 (Fla. 2006), this Court held:
Hertz alleges that Rand failed to present evidence of his brain damage. As mentioned above, this alleged "brain damage" theory was presented by Dr. Mosman at the postconviction evidentiary hearing. The trial court found Dr. Mosman's testimony unconvincing. Even if the trial court had found Dr. Mosman's opinion on this point convincing, it still would have simply been a more favorable opinion of a new and different doctor postconviction which would not have rendered Rand's reliance on other expert opinions ineffective
"substantially impaired ability to conform one's conduct" mitigating factor, he also found that the trial evidence indicated that Schwab may have been "unwilling" rather than "unable" to control his desires. Accordingly, new evidence truly demonstrating that Schwab could not control his conduct could impact sentencing. However, we agree with the postconviction court that these scientific articles are not such evidence. As the postconviction court found, "neither article affirmatively asserts that [brain damage] causes such crimes as committed by Mr. Schwab." Neither article posits a solely neuroanatomical etiology for sexual offense, nor do the articles negate the sentencing judge's conclusion that carefully planned crimes such as those committed by Schwab are largely inconsistent with Schwab's claim that he could not control his behavior.
Schwab v. State, 32 Fla. L. Weekly S697, 698-699 (Fla. Nov. 1, 2007).
The bottom line is, and was at the time of the prior successive postconviction motion, that the time had passed for Schwab to present whatever mental state evidence he had. And, in the final analysis, this claim is nothing more than a successive claim of ineffectiveness of counsel.2 Schwab had his chance to
7
assistance of counsel. See Asay v. State, 769 So. 2d at 986. Additionally, ample evidence of the mental health problems was in fact presented through the testimony of Dr. D'Errico during the penalty phase.
present his case, and did not take it. He is bound by that decision, and is not entitled to a second bite at the apple. In deciding a similar claim, this Court held:
Having failed to show any justification for his failure to raise the present claims in his earlier postconviction motions, the instant motion constitutes an abuse of process. Spaziano v. State, 545 So. 2d 843 (Fla. 1989); Tafero v. State, 524 So. 2d 987, 988 (Fla. 1987); Booker v. State, 503 So. 2d 888, 889 (Fla. 1987); Christopher v. State, 489 So. 2d at 25.4
4In addition, we note that the motion was filed outside of the limitations period established by rule 3.850. The motion fails to allege that the facts upon which his claims are based "could not have been ascertained by the exercise of due diligence." Fla. R. Crim. P. 3.850.
Foster v. State, 614 So. 2d 455, 459 (Fla. 1992).
B. The "Evidence" is not "Newly Discovered."
In an effort to avoid application of the settled procedural bar rules, Schwab labels the "evidence" as "newly discovered." That argument fails for two reasons.
First, although Schwab claims that he could not have discovered Dr. Samek’s testimony with due diligence, and thus it is truly "newly discovered evidence," the record refutes this allegation. Schwab contacted Dr. Samek, the State’s mental health expert at trial. Dr. Samek did not wish to talk to
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3 To the extent that Schwab argues that this motion "estopped" the State from asserting a procedural bar, that argument has no legal support. The procedural bar arises out of Schwab’s failure to attempt to present the Samek evidence in his first post-conviction relief motion, which was filed in 1995.
Schwab’s counsel without permission from the State. Schwab filed a Motion for Judicial Intervention on August 14, 2007. That same day, the State filed a Motion to Strike the Motion for Judicial Intervention and a Motion for Protective Order.3 The circuit court held a hearing on that motion on August 16, 2007, and held that if Dr. Samek’s ethical rules allowed him to give statements and testimony on behalf of the defense, then there was no preclusion or bar that the State could assert. Schwab now argues that because the State claimed privilege and conflict regarding Dr. Samek becoming a defense expert, the State has waived any claim that Schwab did not use due diligence in seeking out Dr. Samek. What Schwab fails to inform this Court (as he never informed the Circuit Court) is why he waited thirteen years to seek out Dr. Samek. The State notes that the Circuit Court ruled within two days on Schwab’s motion for judicial intervention. The State also notes that Schwab’s conviction and sentence was final in 1994 when the United States Supreme Court denied certiorari review. Schwab v. Florida, 513 U.S. 950 (1994). His first motion for postconviction relief was filed on December 15, 1995, and amended on April 15, 1998. An evidentiary hearing was
9
held in June 1999. Schwab fails to explain why he did not attempt to contact Dr. Samek before 2007.
Second, the reports upon which Dr. Samek now relies are not newly discovered evidence. By definition, "newly discovered evidence" was in existence, but unknown, at the time of trial. Diaz v. State, 945 So. 2d 1136, 1144 (Fla. 2006). This Court has emphasized:
This Court has held that to obtain relief based on a newly discovered evidence claim a defendant must satisfy the following two requirements:
First, in order to be considered newly discovered, the evidence "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 [of it] by use of due diligence.
"Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. . . .
In considering the second prong, the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to admissibility. . . . The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.
Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (citations omitted).
Sireci v. State, 773 So. 2d 34, 43 (Fla. 2000). See also, Wright v. State, 857 So. 2d 861, 871 (Fla. 2003); Porter v. State, 653
10
So. 2d 374, 380 (Fla. 1995). If Schwab’s claim that this evidence did not exist at the time of the prior proceedings is credited, then he has conceded that he cannot carry his burden of demonstrating that the evidence is "newly discovered."
Last, Dr. Samek’s opinion is not newly discovered because it did not exist at the time of trial, and the law at the time precluded the State from forcing a mental health evaluation of a defendant by a State expert. See, Burns v State, 609 So. 2d 600, 606 n.8 (Fla. 1992). By Schwab’s own actions, he limited the information available to Dr. Samek to that testified about by Schwab’s own experts. Because that is so, the averments contained in the second successive motion would not even have been available for impeachment use at trial. And, it makes no sense to accuse the State of "limiting" the information available to Samek when Schwab put that limitation in place through the evidence he put on through his own experts. Given that the State could not compel Schwab to sit for an evaluation by Dr. Samek, Schwab has no basis for complaint.
C. This Claim is Refuted by the Record.
Incredibly, Schwab seems to be suggesting that his crimes were "impulsive." Nothing could be farther from the truth. Schwab planned the abduction, sexual battery and murder of Junny Rios-Martinez over a substantial period of time, and his claims to the contrary in his second successive motion strain
11
4 Rule 3.850, Fla.R.Crim.P., provides that:
A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.
On September 26, 2001, the Florida Supreme Court adopted Amendments to Fla.R.Crim.P. 3.851, 3.852 and 3.993, and Fla.R.Jud.Admin. 2.050. As part of new rule 3.851, which became effective October 1, 2001, the court defined "successive motion" to mean:
A motion filed under this rule is successive if a
credulity. To the extent that further discussion is necessary, the sentencing order entered by Judge Richardson leaves no doubt that these crimes were anything but impulsive.
CLAIM II: THE "NEWLY DISCOVERED EVIDENCE" CLAIM REGARDING DOC AND FDLE TRAINING LOGS
THE CIRCUIT COURT’S ORDER
The collateral proceeding trial court found that the Arvizu affidavit was legally defective, and, further, that the "training notes" at issue related to July 2007 training, which was before the adoption of the August 2007 procedures. Order, at 9-10. The Court went on to hold that there was nothing to "render the current protocol or the training of personnel to carry them out inadequate. Order, at 11.
A. Sufficiency of the Motion4
12
state court has previously ruled on a postconviction motion challenging the same judgment and sentence. . .
Fla. R. Crim P. 3.851 (3)(2)
In creating the new postconviction rule for capital cases, the Florida Supreme Court was aware that successive motions continue to be viewed in a different light than initial motions for postconviction relief.
5 These training sessions took place in July of 2007, before the adoption of the August 1, 2007, procedures which this Court approved in Lightbourne v. McCollum, 32 Fla. L. Weekly S687 (Fla. Nov. 1, 2007).
Schwab claims that he has "newly discovered evidence" in the form of notes taken by four separate FDLE monitors during training exercises which were not provided pursuant to public records demands.5 Intermingled with this allegation is a claim that DOC objected to the release of FDLE documents. This portion of the claim fails for lack of clarity.
Insofar as the FDLE claim, Schwab attached a response from FDLE to the second successive motion stating that FDLE does not have any records responsive to paragraphs 1, 2, and 3 of Schwab’s request, and that FDLE cannot respond to paragraphs 5 and 6 of the request because no FDLE individual has been assigned to any specific future execution.
A copy of the public records demand served on FDLE was attached to the State’s response to the successive motion and is incorporated herein by reference. The record shows that the paragraph 1 requests protocols and checklists used by FDLE to
13
carry a death sentence. Paragraph 2 requests all communications with the Governor concerning renovations to execution facilities, revisions to protocols and checklists, and "similar documents" that will be followed to carry out a death sentence. Paragraph 3 requests communications with DOC concerning protocols, and documents used by FDLE to assist DOC in carryng out an execution. Schwab does not seem to take issue with FDLE’s response on these three paragraphs.
Schwab seems to take issue with paragraph’s 5 and 6 of FDLE’s response, which states:
FDLE has not currently assigned any individuals to attend the execution of the defendant and as such can not respond to the request for records set forth in paragraphs 5 and 6 of the defendant’s request.
Schwab’s request to FDLE asked for the "training, licensure, certification, medical specialization, highest degree obtained, educational institution attended" or the individuals that will assist or be present when Schwab’s death sentence is carried out. As indicated by counsel for FDLE, no individual is assigned to a specific execution; therefore, the FDLE agent who will be present at Schwab’s execution is unknown. Further, the notes of training are not "newly discovered evidence" under the definition set forth above, because the notes did not exist at the time of trial. The notes of training were made on July 11, July 18, and July 25, 2007. Schwab’s request was dated July 27,
14
2007 -- he never filed a subsequent request, even though the procedures were issued, in revised form, on August 1, 2007.
Next, the record in Lightbourne shows that on July 20, Tim Westveer, FDLE agent, testified that he was one of the FDLE inspectors who was attending training sessions at DOC. There are currently four FDLE observers training with DOC, and any two would attend a given execution. The other three inspectors were Tonia Bryant-Smith, Rose Davis, and Mark Mitchell. Westveer and Bryant-Smith trained on July 11, 2007. Westveer described his role in the training sessions in detail. Schwab requested judicial notice of the record in the Lightbourne proceedings and is assumed to have knowledge of the contents. Thus, not only is this information not "newly discovered," but also, this claim is not raised in good faith. Schwab did not file his successive motion for postconviction relief until August 15, 2007, almost a month after the hearing in Lightbourne at which Westveer testified.
Insofar as the allegations regarding Janine Arvizu, these allegations are nothing but more of the same claims contained in the previous successive 3.851 motion. As this Court held:
Moreover, while Schwab's motion for consideration did provide more detail as to how the requested information was relevant to his claims, his argument for production relied upon the affidavit of a "quality assurance auditor." Schwab fails to sufficiently explain how this auditor is qualified to provide a reliability and efficacy report on DOC's method of
15
execution.
Schwab v. State, 32 Fla. L. Weekly S697, 698 (Fla. Nov. 1, 2007) (emphasis added). Schwab continues to fail to explain how a "quality assurance" auditor with no experience in lethal injection training or procedure is qualified to offer an opinion on the subject. The true facts are that the "auditor" engaged by Schwab has no qualifications which would allow her to testify in any capacity on the adequacy of the Department of Corrections procedures for execution by lethal injection. That expert, Arvizu, appears to be an "all-purpose" expert, willing to conduct an "audit" of any entity a defendant may request. See, Darling v. State, 32 Fla. L. Weekly S486 (Fla., July 12, 2007) (criticisms of FDLE laboratory rejected). Arvizu has no particularized experience that would enable her to evaluate the Department’s procedures, and any eleventh-hour request for an "audit" should be rejected.
Finally, Schwab’s attempt to inject this "expert" into the proceedings seems to be an unauthorized interference with the functioning of the executive branch. This Court has noted:
Turning to the merits, we note that the execution of condemned prisoners is clearly a matter within the province of the executive branch of government. § 922.09, Fla. Stat. (1989). It must be presumed that members of the executive branch will properly perform their duties. The Department of Corrections conducted an investigation and concluded that the irregularities in Tafero's execution were caused by the use of a synthetic sponge. We do not find that the record as
16
proffered justifies judicial interference with the executive function to require an evidentiary hearing to determine the competence of the Department of Corrections to carry out Buenoano's execution.
Buenoano v. State, 565 So. 2d 309, 311 (Fla. 1990). See also, Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000) ("Article II, section 3 of the Florida Constitution prohibits the members of one branch of government from exercising ‘any powers appertaining to either of the other branches unless expressly provided herein.’"). The "audit" is inappropriate for this reason, as well.
CONCLUSION
Wherefore, based upon the foregoing, the State submits that the Circuit Court’s order denying relief should be affirmed in all respects.
Respectfully submitted,
BILL McCOLLUM
ATTORNEY GENERAL
KENNETH S. NUNNELLEY
SENIOR ASSISTANT ATTORNEY GENERAL
Florida Bar #0998818
444 Seabreeze Blvd. 5th FL
Daytona Beach, FL 32118
(386) 238-4990
Fax # (386) 226-0457
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above has been furnished by e-mail and U.S. Mail to: Mark Gruber,
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Assistant CCRC-Middle, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619 (813)740-3554 on this day of November, 2007.
_____________________________
Of Counsel
CERTIFICATE OF COMPLIANCE
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