Buenoano v. State
| Decision Date | 20 June 1990 |
| Docket Number | No. 76150,76150 |
| Citation | 565 So.2d 309 |
| Court | Florida Supreme Court |
| Parties | 15 Fla. L. Weekly S355 Judy A. BUENOANO, Appellant, v. STATE of Florida, Appellee. |
Larry Helm Spalding, Capital Collateral Representative, and Billy H. Nolas, Chief Asst. C.C.R., Office of the Capital Collateral Representative, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
Judy A. Buenoano, a prisoner under sentence of death and the Governor's death warrant, appeals from a summary denial of relief in the circuit court on a motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.
The facts of the crime of which Buenoano was convicted are recited in her initial appeal to this Court. Buenoano v. State, 527 So.2d 194, 195-96 (Fla.1988). We affirmed the denial of her motion for postconviction relief and denied her petition for habeas corpus in Buenoano v. Dugger, 559 So.2d 1116 (Fla.1990).
The crux of Buenoano's present claim relates to the circumstances surrounding the recent execution of Jesse Tafero on Friday, May 4, 1990. When Tafero's electrocution began, smoke and flames instantaneously spurted from his head for a distance of as much as twelve inches. The flames and smoke emanated from the area around a metallic skull cap, inside of which was a saline-soaked synthetic sponge meant to increase the flow of electricity to the head. The cap is the source of electricity administered to condemned prisoners by the electric chair.
Because of the smoke and flames, officials of the Department of Corrections stopped the first surge of electricity. A second jolt again resulted in smoke and flames spurting from Tafero's head. Finally, a third jolt of electricity was administered. A medical examiner found that Tafero was dead some six or seven minutes after the execution commenced.
Thereafter, the Governor ordered the Department of Corrections to conduct an investigation into the circumstances of Tafero's execution. The Department reported that the equipment was in proper working order. However, it was determined that for the first time a synthetic, rather than a natural, sponge had been used in the headpiece. The Department concluded that the burning of the sponge caused the flames and smoke which were seen during Tafero's execution. Dr. Kilgo, the attending physician, submitted an affidavit stating that with the initial surge of electricity Tafero had no further conscious mental awareness or sensate appreciation. Dr. Hamilton, the medical examiner, stated that "the first jolt obliterated consciousness." The Department concluded that Tafero did not suffer from any unusual or prolonging effects due to the circumstances attendant to his execution. The Department also noted that most executions last longer than seven minutes.
In this appeal, Buenoano contends that her execution would be cruel and unusual punishment because of the malfunctions in the electric chair. Armed with the affidavit of an electric chair designer, she argues that the fault in Tafero's execution lay with a "homemade" electrode in the chair that inadequately conducts electricity, thus increasing the possibility of burning and slow death. Alleging that the defect in the electrode has not been remedied, she says that she could face cruel and unusual punishment because Tafero's execution demonstrated that the Department of Corrections is "incompetent to carry out executions."
Initially, the state argues that Buenoano is barred from arguing this issue for failure to raise it in her prior rule 3.850 proceeding. The state suggests that Buenoano should have previously raised the issue of a probable malfunction in the electric chair. We disagree. Buenoano's claim rests primarily upon facts which occurred only recently during Tafero's execution. We find the claim is not procedurally barred.
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 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. Death by electrocution is not cruel and unusual punishment, and one malfunction is not sufficient to justify a judicial inquiry into the Department of Corrections' competence. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947) (plurality opinion).
We affirm the denial of Buenoano's motion for postconviction relief. No petition for rehearing shall be permitted.
It is so ordered.
In my opinion, the trial court should have conducted an evidentiary hearing to determine as a matter of fact whether the problem that caused the malfunction at Tafero's execution has been corrected. Buenoano alleges that the problem remains. The events surrounding Mr. Tafero's execution were highly unusual and, in my opinion were sufficiently egregious to warrant such a factual determination in the present case. It is our state courts' duty to ensure that each and every execution carried out in Florida is completed in a manner that is neither cruel nor unusual.
To my knowledge this is the first time any court has ever held that it is the executive branch that decides, without question or appeal, a constitutional claim of cruel or unusual punishment. Interpreting the constitution is a judicial function. It may not constitutionally be carried out by either the legislative or executive branches unless it is subject to judicial review. As this Court has said,
The Constitution vests "the judicial power of the state" in designated courts, each having jurisdiction of defined classes of cases.... This power is the means provided by the Constitution for authoritatively determining in litigated cases the meaning and intent of pertinent provisions of the Constitution itself ... and whether executive or administrative action ... accords with the Constitution ... so that the court may give appropriate effect to the applicable governing law in adjudicating rights.
Getzen v. Sumter County, 89 Fla. 45, 49-50, 103 So. 104, 106 (1925).
Judy Buenoano has made a simple constitutional claim: The electric chair is not working properly. Because of a malfunction, she says, it will cause an unusually torturous death in violation of the eighth amendment. 1 She supports her claim with affidavits of experts who are ready, willing, and able to testify in person.
The state disputes her claim and argues that the malfunction, which it concedes occurred, has been repaired by substituting a natural sponge for a synthetic sponge in the skull cap of the electric chair. Buenoano replies that a malfunctioning electrode, rather than the sponge, caused the problem, thereby disputing the assertion that the chair has been fixed.
Buenoano may be factually correct, or the state may be factually correct. Until today, a neutral magistrate would have been expected to hear the evidence presented, make a finding of fact, and based thereon, determine if the method of death was cruel or unusual punishment.
Today, however, the majority, in denying a hearing, departs not only from any semblance of due process but from any process at all. It does so without any legal support or analysis. The majority simply proclaims that the state may choose any method of death, and the method cannot be challenged, because we "presume" that the state cannot be wrong.
The only relief sought by Buenoano is a hearing. She asks for an opportunity to present her proof to a judge so she will not die in torturous fashion. The majority concedes that there is no procedural impediment to her claim. Why then can she not have her hearing? Because, the majority says, we trust the state has done its job, if the state says it has. Never mind that every principle of constitutional law has been developed by the very same procedure attempted here, to wit, a challenge to the state's action.
Although relief is foreclosed to Buenoano, according to the majority, she can die taking comfort in knowing that her death may contribute to some other person's relief if her execution, and perhaps countless others, proves to be as horrible as Tafero's. Only then, according to the majority, will there have been a sufficient number of malfunctions to justify even a judicial inquiry. 2 This is a bizarre twist to death penalty jurisprudence. It is even more bizarre when one considers the pragmatic implications here. The state conceded at oral argument that it has spent more time and money disputing Buenoano's claims in court than it would have spent simply by replacing the alleged malfunctioning electrode.
The humane thing to do, not to mention the more economical and efficient thing to do, would have been simply to replace the electrode that Buenoano's experts say malfunctioned. That would have caused no delay in the administration of the penalty, contrary to the delay caused by litigating this simple claim. I guess this is too easy a solution.
Although the problems that accompanied Tafero's execution clearly were accidental and unintentional,...
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...Mitchell v. Hopper, 538 F.Supp. 77, 94 (S.D.Ga.1982); Stripling v. State, 261 Ga. 1, 401 S.E.2d 500, 506 (1991); Buenoano v. State, 565 So.2d 309, 311 (Fla.1990); Wallace v. State, 553 N.E.2d 456, 474 (Ind.1990); State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622, 633 (1989); Pruett v. Sta......
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Provenzano v. Moore
...flame and smoke were caused by insufficient saline solution on the sponge in the headpiece of the electric chair); Buenoano v. State, 565 So.2d 309, 310-11 (Fla. 1990) (discussing flames and smoke that erupted from the headpiece of the electric chair during the 1990 execution of Jessie Tafe......
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Black v. Bell, 3:00-0764.
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