Correll v. State, SC15–147.

• Decision Date: 02 October 2015
• Docket Number: No. SC15–147.,SC15–147.
• Citation: 184 So.3d 478
• Parties: Jerry William CORRELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

184 So.3d 478

Jerry William CORRELL, Appellant,

v.STATE of Florida, Appellee.

No. SC15–147.

Supreme Court of Florida.

Oct. 2, 2015.

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region, Raheela Ahmed, Assistant Capital Collateral Regional Counsel, Middle Region, Maria Christine Perinetti, Assistant Capital Collateral Regional Counsel, Middle Region, Donna Ellen Venable, Assistant Capital Collateral Regional Counsel, Middle Region, and Maria E. DeLiberato, Assistant Capital Collateral Regional Counsel, Middle Region, Tampa, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; and Carol Marie Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Jerry William Correll, a prisoner under sentence of death for whom a warrant has been signed,¹ appeals from the summary denial of his third and fourth successive motions for postconviction relief, circuit court orders that sustained objections to his public records requests, and the denial of his claim regarding midazolam following an evidentiary hearing on that issue. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons discussed, we affirm.

BACKGROUND

Correll was convicted of the first-degree murders of his ex-wife, Susan Correll; the Corrells' five-year-old daughter, Tuesday; Susan's mother, Mary Lou Hines; and Susan's sister, Marybeth Jones. Correll v. State (Correll I), 523 So.2d 562, 564 (Fla.1988). On direct appeal, this Court described the circumstances of the murders as follows:

On the morning of July 1, 1985, the bodies of the four victims were discovered in Mrs. Hines's home in Orlando. All had been repeatedly stabbed and died from massive hemorrhages ; the three older victims had defensive type wounds on their hands. A sheriff's department investigator was called to the crime scene and approximately an hour and a half after his arrival encountered Jerry Correll there. Correll was asked for a statement and subsequently went to the sheriff's department where he gave first an oral and then a tape recorded statement. In his statement, Correll indicated that on the night of the murders he had been drinking and smoking marijuana with a woman, who later drove with him to Kissimmee. While at the sheriff's department, Correll consented to having his fingerprints taken and having pictures of the scratches, cuts and bruises on his hands and forearms taken. The next day, Correll was again interviewed and subsequently arrested. After being advised of and waiving his Miranda rights, Correll gave another statement after his arrest. Several bloody fingerprints and palm prints found at the murder scene were later matched to Correll's. Evidence that he had previously threatened to kill his ex-wife was also admitted. In addition, he could not be ruled out as the person whose bloodstains were found at the scene and whose sperm was found in Susan Correll's vagina.

Id. The jury recommended sentences of death by a vote of nine to three for Susan and ten to two for Tuesday Correll, Mary Lou Hines, and Marybeth Jones. Correll v. Sec'y, Dep't of Corr. (Correll V), 932 F.Supp.2d 1257, 1263 n. 4 (M.D.Fla.2013). The trial court imposed the death sentence for each murder and found in aggravation:

Correll had been previously convicted of another capital offense; the murder of Susan Correll was heinous, atrocious and cruel and was committed during a sexual battery; the murder of Marybeth Jones was committed during a robbery and for the purpose of avoiding arrest; the murder of Tuesday Correll was heinous, atrocious and cruel, committed in a cold, calculated and premeditated manner and was for the purpose of avoiding arrest; and the murder of Mary Lou Hines was heinous, atrocious and cruel.

Correll I, 523 So.2d at 564.² No mitigating factors were found by the trial court. Id.

This Court affirmed Correll's convictions and sentences. Id. at 568. On October 3, 1988, the United States Supreme Court denied certiorari review. Correll v. Florida, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988).

After the circuit court summarily denied Correll's initial motion for postconviction relief, he appealed and also filed a petition for writ of habeas corpus with this Court. Correll v. Dugger (Correll II), 558 So.2d 422, 423 (Fla.1990). This Court affirmed the denial of postconviction relief and denied the habeas petition. Id. at 427. Thereafter, Correll filed his first successive motion for postconviction relief, which presented a claim of newly discovered evidence and alleged public records violations. Correll v. State (Correll III), 698 So.2d 522, 523 (Fla.1997). After the motion was summarily denied, Correll filed a motion to disqualify the presiding judge, which was also denied. Id. On appeal, this Court affirmed the denial of both the successive motion and the motion to disqualify. Id. at 525. In 2004, this Court affirmed the summary denial of a second successive postconviction motion in which Correll challenged his death sentences pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Correll v. State (Correll IV), 880 So.2d 1210 (Fla.2004) (table decision).

In 2013, the United States District Court for the Middle District of Florida denied Correll's third amended petition for writ of habeas corpus. Correll V, 932 F.Supp.2d at 1324.³ Thereafter, the United States Court of Appeals for the Eleventh Circuit denied Correll a certificate of appealability. Correll v. Sec'y, Dep't of Corr., No. 13–11786–P (11th Cir. July 25, 2013). On January 27, 2014, the United States Supreme Court denied certiorari review. Correll v. Crews, ––– U.S. ––––, 134 S.Ct. 1024, 188 L.Ed.2d 124 (2014).

After Governor Scott signed the warrant in this case on January 16, 2015, Correll filed a third successive motion for postconviction relief. The claims presented were: (1) Florida's death penalty statute is unconstitutional and violates evolving standards of decency; (2) the length of time that Correll has spent on death row constitutes cruel and unusual punishment; and (3) the failure to reveal information about the execution team members violates both the Florida and the United States Constitutions. Correll did not seek an evidentiary hearing. He also filed extensive public records requests with the Florida Department of Corrections (DOC), the Florida Department of Law Enforcement (FDLE), and the Office of the Medical Examiner, District Eight. The DOC agreed to provide certain records, but objected to others. The FDLE and the Office of the Medical Examiner objected to the requests.⁴ On January 23, 2015, the circuit court sustained the objections of each of these entities.

On January 26, Correll filed with the circuit court an emergency motion for stay of proceedings and stay of execution based upon the United States Supreme Court's grant of certiorari review in Warner v. Gross,

–––U.S. ––––, 135 S.Ct. 1173, 190 L.Ed.2d 929 (2015),⁵ to consider the use of midazolam in the lethal injection protocol of Oklahoma, which is nearly identical to that of Florida. On January 28, the circuit court entered orders that summarily denied Correll's third successive postconviction motion and denied his motion for a stay. Correll appealed the summary denial order to this Court, as well as the orders that sustained the public records objections and denied the motion for a stay. Correll subsequently filed with this Court an emergency petition for stay of proceedings and stay of execution.

On February 4, this Court relinquished jurisdiction to the circuit court to permit Correll to file any pleadings desired with regard to Florida's lethal injection protocol and to allow the circuit court to consider and determine any claims filed. Thereafter, Correll filed a fourth successive postconviction motion in which he presented the following challenges: (1) Florida's lethal injection protocol is unconstitutional because midazolam cannot reliably produce deep unconsciousness, and there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs in the protocol when a person is conscious; (2) the holding in Baze v. Rees, 553 U.S. 35, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion), that a stay of execution will not be granted absent the showing of a "demonstrated risk of severe pain" that is "substantial when compared to the known and available alternatives," is not applicable to Correll because Florida does not use the protocol considered in Baze; (3) Correll is not required to establish the availability of an alternative execution drug formula because Florida's lethal injection protocol violates the Eighth Amendment even when it is properly administered; and (4) Florida's lethal injection protocol is unconstitutional as applied to Correll due to the substantial risk of a paradoxical reaction to midazolam, which increases the risk of Correll being conscious during the administration of the second and third drugs.

With regard to this final challenge, Correll asserted that he has a known history of alcohol abuse. Further, he stated that a psychiatrist has diagnosed him with "chemical dependency, Psychoactive Substance Abuse [Disorder], and Psychoactive Substance–Induced Organic Mental Disorder, as well as ‘global cognitive impairment’ due to organic brain damage." Correll asserted that there is a significant risk of a paradoxical reaction in individuals with a history of alcohol abuse or psychiatric disorders. Correll requested an evidentiary hearing with regard to this motion and listed two witnesses who were available to testify.

On February 9, the circuit court summarily denied all claims. Correll appealed the denial and filed with this Court a renewed request for stay of proceedings and stay of execution. On February 17, this Court stayed Correll's execution.

On June 29, 2015, the United States Supreme Court upheld the constitutionality of the use of midazolam in executions...