Malicoat v. State, D-1998-151.

• Decision Date: 19 June 2006
• Docket Number: No. D-1998-151.,D-1998-151.
• Citation: 2006 OK CR 25,137 P.3d 1234
• Parties: James Patrick MALICOAT, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1234

137 P.3d 1234

2006 OK CR 25

James Patrick MALICOAT, Appellant v. STATE of Oklahoma, Appellee.

No. D-1998-151.

Court of Criminal Appeals of Oklahoma.

June 19, 2006

ORDER DENYING REQUEST FOR STAY OF EXECUTION AND SETTING EXECUTION DATE

¶ 1 James Patrick Malicoat was tried by jury and convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(C), in the District Court of Grady County, Case No. CF-97-59. The jury found two aggravating circumstances: (1) that the murder was especially heinous, atrocious or cruel, and (2) the existence of a probability that Malicoat would commit criminal acts of violence constituting a continuing threat to society. In accordance with the jury's recommendation the Honorable Joe Enos sentenced Malicoat to death. He appealed his judgments and sentences to this Court, we affirmed, and the United States Supreme Court denied certiorari.¹ This Court subsequently denied Malicoat's application for post-conviction relief.² Malicoat was denied habeas corpus relief in the federal courts.³ Malicoat has exhausted his appeals in state and federal court. On June 5, 2006, the State of Oklahoma filed an Application for Execution Date with this Court.

¶ 2 Malicoat filed an Objection to Setting of an Execution Date on June 5, 2006.⁴ Malicoat claims that Oklahoma's lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. He argues that the state's execution procedure creates a substantial risk that he will consciously suffer or experience excruciating pain during the execution process. Malicoat claims that mistakes made during the execution process itself might lead to drug administration failure, causing pain and suffering. He claims that Oklahoma's failure to require specially trained medical personnel heightens the likelihood that such mistakes will be committed. Malicoat also claims that the drugs used in the execution protocol themselves cause pain and suffering and violate the Eighth Amendment. Malicoat notes that pending litigation in the federal courts challenges Oklahoma's execution protocol, and asks this Court to stay any execution date until that litigation has been resolved.

¶ 3 The State urges this Court to either disregard Malicoat's pleading as improper or apply the doctrine of waiver. This Court has not yet had an opportunity to rule on this issue.⁵ We treat Malicoat's substantive claim, that to set an execution date would subject him to cruel and unusual punishment, as a subsequently filed application for capital post-conviction review.⁶ If Malicoat's claim is correct, then his legal sentence will be carried out in an illegal manner, substantially violating both the United States and Oklahoma constitutions. This Court has the authority to consider the merits of an issue which may so gravely offend a defendant's constitutional rights and constitute a miscarriage of justice.⁷ In the interests of justice, and considering the importance of the principle of finality of sentences, we reach the merits of Malicoat's claim and deny his request to stay his execution date.

¶ 4 In support of his claim, Malicoat offers this Court affidavits from the Warden of the Oklahoma State Penitentiary, and an Assistant Professor of Clinical Anesthesiology in the Department of Anesthesiolgy at Columbia University, New York. He also provides the Court with the Oklahoma Department of Corrections Procedures for Execution, a portion of a 2000 Report on the American Veterinary Medical Association Panel on Euthanasia and a newspaper article describing the recent execution of another Oklahoma capital prisoner. We have considered these documents in reaching our conclusion.

¶ 5 Oklahoma's execution protocol, requiring lethal injection, is established by statute: "The punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice."⁸ The specific method of execution is determined by Department of Corrections. The Department of Corrections developed the method of execution currently in use after consultation with medical professionals in the Oklahoma Medical Examiner's Office and the Department of Corrections Pharmacy, and after reviewing procedures used in other states.⁹ The process is described in Exhibit A to Malicoat's Objection, an Affidavit by Warden Mullin. Since 2003, the Department of Corrections has administered sodium thiopental, vecuronium bromide, and potassium chloride in the execution process.¹⁰ All personnel involved in the execution process have had extensive training and experience in the execution procedures.¹¹ Throughout the execution, a licensed physician is present in the execution chamber to monitor the defendant.¹² A licensed phlebotomist inserts an intravenous line into each arm of the defendant.¹³ Using both lines, the defendant is first given an ultra-short acting barbiturate, sodium thiopental, which renders the inmate unconscious. This is followed by vecuronium bromide and potassium chloride, administered as quickly as possible after the barbiturate, alternating in each arm.¹⁴ During the process, another dose of sodium thiopental is administered.¹⁵ Immediately after each drug is administered, that line is flushed with saline before the next dosage is given.¹⁶ The drugs for each execution are compounded by a licensed pharmacist for the Department of Corrections.¹⁷ The purpose behind the regimen of drug administration is to ensure that the barbiturate, sodium thiopental, renders the defendant unconscious as the other drugs are administered.

¶ 6 Malicoat fails to show that this protocol is facially unconstitutional. The Eighth Amendment prohibits cruel and unusual punishment.¹⁸ Whether a punishment is considered cruel and unusual is viewed through "the evolving standards of decency that mark the progress of a maturing society."¹⁹ We look at whether the punishment at issue is proportionate to the offense, offends contemporary standards of decency, and has legitimate punishment objectives.²⁰ Punishment is cruel and unusual when it involves the unnecessary and wanton infliction of pain.²¹ Malicoat provides this Court with an affidavit from an anesthesiologist who has studied the execution process, explaining the way in which the drugs interact. Dr. Heath relied on Warden Mullin's Affidavit describing Oklahoma's procedure in preparing his own analysis. The vecuronium bromide, administered immediately after the barbiturate, paralyzes the muscles. The potassium chloride spreads throughout the body and stops the heart. If the defendant is not unconscious when the last two drugs are administered, he will experience extreme burning pain but be unable to indicate this because his muscles will be paralyzed.²² Dr. Heath avers that the barbiturate used by Oklahoma, when properly administered, will work effectively, rendering a defendant unconscious "for a considerable period of time."²³ Neither his affidavit nor any other material presented by Malicoat suggest that the protocol, as set forth in the Department of Corrections Procedures and Warden Mullin's Affidavit, is anything but humane and effective. Oklahoma and at least thirty-three other capital punishment states have mandated lethal injection as the primary means of execution, suggesting that it comports with contemporary standards of decency.²⁴ We have in the past held that lethal injection per se is not unconstitutional.²⁵ We must conclude that Oklahoma's execution protocol is constitutional on its face.

¶ 7 Malicoat argues that the protocol is unconstitutional because mistakes may be made in its application, and if mistakes are made during his execution, he will suffer a cruel and unusual death contrary to the Eighth Amendment. Dr. Heath's Affidavit lists fourteen potential areas in which mistakes may be made in the preparation or administration of the drugs.²⁶ Many of these involve human error, including failure to properly mix the drugs, mislabeling, errors in insertion of equipment, and errors in administering the drugs. Some involve mechanical or equipment failure. Some potential mistakes on the list involve equipment which may or may not be used in Oklahoma executions. As Judge Cochran of the Texas Court of Criminal Appeals has said, regarding a similar affidavit Dr. Heath prepared in a case for that Court,

All of these are potential problems during the lethal injection protocol, just as they are potential problems during any surgical procedure. As a society, however, we do not ban surgery because of these potential problems. We take appropriate precautions and rely upon adequate training, skill, and care in doing the job.²⁷

The State of Oklahoma has developed a particular execution protocol, requiring trained personnel including a licensed physician and licensed medical personnel. The Department of Corrections provides training in the execution process for all persons involved in carrying out the procedures. We agree with the Supreme Court of Connecticut that an execution process "cannot foreclose the possibility of human error, that always accompanies any human endeavor," and that the "risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review."²⁸

¶ 8 Malicoat claims that Oklahoma compounds the possibility of mistakes by allowing insufficiently licensed or trained persons to carry out executions. He argues that these mistakes could be avoided if Oklahoma required executions to be carried out by persons with special medical training. Dr. Heath suggests that appropriately trained persons include nurses, emergency medical technicians, physicians, dentists, veterinarians, and physician's assistants.²⁹ Oklahoma requires a licensed physician to be present at each execution and a...