West v. Schofield

• Decision Date: 17 August 2012
• Docket Number: No. M2011–00791–COA–R3–CV.,M2011–00791–COA–R3–CV.
• Citation: 380 S.W.3d 105
• Parties: Stephen Michael WEST, et al. v. Derrick SCHOFIELD, in his official capacity, et al.
• Court: Tennessee Court of Appeals

380 S.W.3d 105

Stephen Michael WEST, et al.

v.Derrick SCHOFIELD, in his official capacity, et al.

No. M2011–00791–COA–R3–CV.

Court of Appeals of Tennessee.

March 6, 2012 Session.

April 11, 2012.

Application for Permission to Appeal Denied by Supreme Court Aug. 17, 2012.

Stephen M. Kissinger and Stephen A. Ferrell, Knoxville, Tennessee, and Roger W. Dickson, Chattanooga, Tennessee, for the appellant, Stephen M. West.

C. Eugene Shiles, Jr., and Howell G. Clements, Chattanooga, Tennessee, for the appellant, Billy Ray Irick.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Mark A. Hudson, Senior Counsel, for the appellee, Derrick Schofield, in his official capacity.

OPINION

DAVID R. FARMER, J., delivered the opinion of the Court, in which HOLLY M. KIRBY, J., and J. STEVEN STAFFORD, J., joined.

DAVID R. FARMER, J.

Plaintiffs filed an action for declaratory judgment and injunctive relief, asserting the lethal injection protocol used to carry-out the death penalty in Tennessee violated constitutional prohibitions against cruel and unusual punishment. The trial court entered judgment in favor of Plaintiffs. While the matter was pending in the Tennessee Supreme Court, the State revised the protocol. The supreme court remanded the matter for further proceedings. The trial court entered judgment in favor of the State. We affirm.

This lawsuit concerns the constitutionality of the three-drug protocol, as revised in November 2010, used to effectuate the death penalty by lethal injection in Tennessee. Plaintiffs Stephen Michael West (Mr. West) and Billy Ray Irick (Mr. Irick; collectively “Plaintiffs”) are condemned inmates who are scheduled to be executed by lethal injection. The current appeal arises from Plaintiffs' action for declaratory judgment and injunctive relief, asserting the three-drug lethal injection protocol constitutes cruel and unusual punishment in violation of the United States Constitution and Constitution of Tennessee. When the action was filed, the lethal injection protocol involved the intravenous injection of 5 grams of sodium thiopental, an anesthesia, followed by 100 milligrams of pancuronium bromide, followed by 200 milliequivalents of potassium chloride. The protocol did not include checks for consciousness after the delivery of the sodium thiopental. It is undisputed that the administration of pancuronium bromide and potassium chloride without proper anaesthesia causes extreme pain and suffering and results in death by suffocation. The trial court determined the protocol violated the constitutional prohibitions against cruel and unusual punishment because it allowed the possibility of death by suffocation due to the effects of pancuronium bromide if the sodium thiopental failed to render the inmate unconscious, or failed to ensure that the inmate remained unconscious when the second and third drugs are administered. In November 2010, the State revised the protocol to include checks for consciousness. The trial court determined that the revised three-drug protocol satisfies the prohibition against cruel and unusual punishment. Plaintiffs appeal. We affirm.

Issues Presented

Plaintiffs present the following statement of the issues for our review:

(1) The evidence preponderates against the Chancery Court's determination that the “check for consciousness,” added to Tennessee's unconstitutional three-drug lethal injection protocol, eliminates the substantial risk that inmates will be conscious during the execution process.

(2) The evidence preponderates against the Chancery Court's determination that there is not a feasible and readily available alternative procedure to insure unconsciousness during the execution process and negate any objectively intolerable risk of severe suffering or pain.

Standard of Review

We review the trial court's findings of fact de novo on the record, with a presumption of correctness, and will not reverse those findings unless the evidence preponderates against them. Tenn. R.App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.2000). Insofar as the trial court's determinations are based on its assessment of witness credibility, we will not reevaluate that assessment absent evidence of clear and convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002). Our review of the trial court's conclusions on matters of law, however, is de novo with no presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn.2005). We likewise review the trial court's application of law to the facts de novo, with no presumption of correctness. State v. Thacker, 164 S.W.3d 208, 248 (Tenn.2005).

Background

On November 7, 2000, the Tennessee Supreme Court set an execution date of March 1, 2001, for Mr. West, who was convicted for the murder of a fifteen-year old girl and her mother. In February 2001, Mr. West signed an affidavit electing electrocution as the method of execution. Mr. West filed a petition for habeas corpus in the federal court, and the execution was stayed. In April 2007, the Tennessee Department of Correction (“the TDOC”) issued new execution protocols for electrocution and lethal injection. The new protocol included a “new election form.” In July 2010, the supreme court ordered that Mr. West would be executed on November 9, 2010.

Mr. West filed a complaint for declaratory judgment and injunctive relief in the Chancery Court for Davidson County October 18, 2010. In his complaint, Mr. West asserted that Defendants Gayle Ray, Commissioner of the TDOC; Ricky Bell, Warden of Riverbend Maximum Security Institution; David Mills, Deputy Commissioner of the TDOC; Reuben Hodge, Assistant Commissioner of Operations; and John Doe Executioners 1–100 (hereinafter, “the State”) intended to execute him by electrocution in violation of Tennessee Code Annotated § 40–23–114(a); in violation of the Eighth and Fourteenth Amendments to the United States Constitution; and in violation of the Tennessee Constitution Article 1, § 16. Mr. West prayed for a declaration that his “old election form” electing execution by electrocution, which he asserted he had signed in 2001 but had rescinded, be declared without force and effect, and that Defendants must present the “new election form” from the current protocol. He also prayed for a declaration that death by electrocution under Tennessee's new protocol violated the United States Constitution and the Constitution of Tennessee. He moved for a temporary injunction enjoining Defendants from carrying out his sentence of death by means of electrocution. On October 25, 2010, the trial court entered an order stating that Mr. West had withdrawn his motion for temporary injunction based upon Defendants' response. The trial court stated that Mr. West was “no longer bound by the 2001 affidavit ... choosing electrocution as the method of death[,]” and that Mr. West was “no longer required to elect his method of execution.”

On October 25, 2010, Mr. West filed an amended complaint for declaratory judgment and injunctive relief. In his amended complaint (hereinafter, “complaint”), Mr. West stated that he was scheduled to be executed by lethal injection on November 9, 2010. He sought a declaration that the State's three-drug lethal injection protocol is unconstitutional. He asserted that Tennessee's three-drug protocol, which then consisted of rapid-fire sequential bolus injections of sodium thiopental, pancuronium bromide, and potassium chloride, is not “substantially similar” to the protocol upheld by the United States Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). He asserted multiple insufficiencies of the protocol, including that it “lack[ed] medically necessary safeguards, thus increasing the risk that Mr. West will suffer unnecessary pain and prolonged death during the lethal injection process.” Mr. West asserted that the protocol failed to provide for qualified personnel to administer the drugs, and that there was no procedure for ensuring that the first drug, the anesthetic, adequately sedated the inmate prior to the administration of the second and third drugs. Mr. West referenced numerous non-Tennessee executions to support his argument that the protocol may result in unnecessary pain and suffering. He also asserted that post-mortem test results indicated that three inmates executed in Tennessee, Robert Coe, Philip Workman, and Steve Hunley, suffered death by suffocation as a result of inadequate anesthesia. Mr. West asserted that the “variables that may have undermined the findings of the Lancet article[,]” the study that was reviewed by the Supreme Court in Baze, were not present in the reports from executions in Tennessee. Mr. West relied on affidavits of Dr. David Lubarsky, one of the authors of the Lancet article examined by the United States Supreme Court in Baze, in support of his assertions that the level and manner of administration of sodium thiopental, the anesthesia used in Tennessee's lethal injection protocol, was not sufficient to ensure unconsciousness.

The trial court denied Mr. West's motion for temporary injunction on the grounds that the court lacked jurisdiction to supersede or enjoin the Tennessee Supreme Court's July 2010 order setting Mr. West's execution. We denied permission for interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. On November 6, 2010, the supreme court granted Mr. West's application for permission to appeal pursuant to Rule 11. The supreme court agreed with the trial court and this Court that the trial court was without authority to stay the supreme court's order. However, the supreme court did not agree that time constraints prevented the trial court from taking proof and issuing a declaratory judgment on the issue of whether Tennessee's three-drug protocol constituted cruel and unusual punishment because the manner by which the sodium thiopental...