217 S.W.3d 207 (Ky. 2006), 2005-SC-0543, Baze v. Rees

Docket Nº:2005-SC-0543-MR.
Citation:217 S.W.3d 207
Opinion Judge:WINTERSHEIMER JUSTICE
Party Name:Ralph BAZE and Thomas C. Bowling, Appellants, v. Jonathan D. REES, Commissioner, Kentucky Department of Corrections; Glenn Haeberlin, Warden, Kentucky State Penitentiary; and Ernie Fletcher, Governor of Kentucky, Appellees.
Attorney:Holly Lynn Harris-Ray, Justice and Public Safety Cabinet, Office of Legal Services, Jeffrey Thomas Middendorf, Justice and Public Safety Cabinet, Office of Legal Services, David A. Smith, Assistant Attorney General, Office of Attorney General, John Palombi, Assistant Public Advocate, Department ...
Case Date:November 22, 2006
Court:Supreme Court of Kentucky
 
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Page 207

217 S.W.3d 207 (Ky. 2006)

Ralph BAZE and Thomas C. Bowling, Appellants,

v.

Jonathan D. REES, Commissioner, Kentucky Department of Corrections; Glenn Haeberlin, Warden, Kentucky State Penitentiary; and Ernie Fletcher, Governor of Kentucky, Appellees.

No. 2005-SC-0543-MR.

Supreme Court of Kentucky

November 22, 2006

Rehearing Denied April 19, 2007.

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE ROGER CRITTENDEN, JUDGE 2004-CM094

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John Palombi, Assistant Public Advocate, Department of Public Advocacy, David M. Barron, Department of Public Advocacy, Frankfort, Counsel for Appellants.

Holly Lynn Harris-Ray, Justice and Public Safety Cabinet, Office of Legal Services, Jeffrey Thomas Middendorf, Justice and Public Safety Cabinet, Office of Legal Services, David A. Smith, Assistant Attorney General, Office of Attorney General,

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Criminal Appellate Division, Frankfort, Counsel for Appellees.

OPINION

WINTERSHEIMER JUSTICE

This appeal is from a decision of the circuit court denying relief sought by Baze and Bowling in the form of a declaratory judgment. This action was filed in accordance with CR 57, which outlines the procedure for obtaining a declaratory judgment pursuant to KRS 418.040.

The single issue is whether the lethal injection provisions for execution protocol violate or threaten to violate the rights of Baze and Bowling to be free from cruel and unusual punishment.

Baze and Bowling argue that the lethal injection method is cruel and unusual punishment forbidden by the Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution. There are no questions in this case involving the guilt or convictions of either defendant. The recommendations by the jury of death sentences are also not in question. The only issue to be decided is the manner in which the Commonwealth of Kentucky will carry out the sentences on the convicted individuals.

Baze and Bowling were both convicted of double murders and each was sentenced to death. Both Bowling and Baze have completely exhausted all of the legitimate state and federal means for challenging their convictions and the propriety of the death sentences. Both have refused to select a method of execution as provided by KRS 431.220. The statutory option allows an inmate to choose electrocution or to submit to the default of lethal injection as punishment.

As background to this matter, we believe it is appropriate to recall briefly the underlying facts in each case. Baze was convicted by a jury of two murders for shooting two law enforcement officers three times in the back with an assault rifle when the officers were attempting to serve him with five felony fugitive warrants from Ohio. See Baze v. Commonwealth, 965 S.W.2d 817 (Ky. 1997). A jury convicted Bowling of the murders of a husband and wife as they sat in their automobile in a parking lot outside a Lexington dry cleaning shop. See Bowling v. Commonwealth, 873 S.W.2d 175 (Ky.1993).

The trial judge on April 18, 2005, began a bench trial to determine the sole issue regarding the propriety of the lethal injection protocol. Seventeen depositions were presented and twenty witnesses were called to trial to testify including various Department of Corrections personnel, physicians, issues advocates and researchers. The trial ended on May 10. The trial judge issued his decision on July 8, 2005. This case comes to our Court as a matter of right.

I. Standard of Review

Pursuant to CR 57 and KRS 418.040, Baze and Bowling sought a declaratory judgment that the lethal injection method of execution violates their federal and state rights to be free from cruel and unusual punishment. Woods v. Commonwealth, 142 S.W.3d 24 (Ky. 2004), provides that in order to succeed, they must establish such constitutional violations by a preponderance of the evidence. Our review is de novo as to the conclusions of law. Rehm v. Clayton, 132 S.W.3d 864 (Ky. 2004).

A method of execution is considered to be cruel and unusual punishment under the Federal Constitution when the procedure for execution creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.

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2909, 49 L.Ed.2d 859 (1976). In reviewing whether the method of execution is a constitutional violation, courts must consider whether it is contrary to evolving standards of decency that mark the progress of a maturing society. See Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Prior interpretation of Section 17 of the Kentucky Constitution provides that a method of punishment is cruel and unusual if it shocks the moral sense of all reasonable men as to what is right and proper under the circumstances. See Weber v. Commonwealth, 303 Ky. 56, 196 S.W.2d 465 (1946); See also Weems v. U.S., 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

Circuit Court Decision

This action is a declaratory judgment and the standard of review on appeal is that which is used in a civil matter. CR 52.01 has long held that matters of fact tried before a judge without a jury are to be reviewed under the clearly erroneous standard. The rule provides in pertinent part that findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Lament v. Lament, 643 S.W.2d 261 (Ky. 1982).

A careful review of this matter indicates there is no reason to believe that the circuit judge was clearly erroneous in any of his findings of fact. They are supported by substantial evidence. Consequently, the decision of the trial judge was not clearly erroneous nor was there any abuse of discretion. Thus, the reviewing court should not substitute its opinion for that of the trier of fact in the absence of clear error.

After an extensive bench trial in which the judge received evidence at length and recognized the arguments and briefs of the parties, the circuit judge denied the relief sought. He concluded that the lethal injection protocol is in conformity with KRS 431.220. The protocol provides for a continuous administration of the lethal injection chemicals and that the argument to the contrary is predicated on a very strained interpretation of the "continuous administration" language of the statute.

A brief summary of the findings and conclusions of the trial judge follows:

1) Baze and Bowling have not demonstrated by a preponderance of the evidence that the method of execution by lethal injection deviates...

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