Schwab v. State

• Decision Date: 01 November 2007
• Docket Number: No. SC07-1603.,SC07-1603.
• Parties: Mark Dean SCHWAB, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

969 So.2d 318

Mark Dean SCHWAB, Appellant, v. STATE of Florida, Appellee.

No. SC07-1603.

Supreme Court of Florida.

November 1, 2007.

Rehearing Denied November 7, 2007.

Bill Jennings, Capital Collateral Regional Counsel, Mark S. Gruber, Peter J. Cannon, and Daphney Gaylord, Assistant CCRC, Middle Region, Tampa, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee.

PER CURIAM.

Mark Dean Schwab, a prisoner under sentence of death and under an active death warrant, appeals the circuit court's order denying his successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the postconviction court's order denying relief.

This case involves the kidnapping and murder of eleven-year-old Junny Rios-Martinez in April 1991. Schwab was convicted of first-degree murder, sexual battery of a child, and kidnapping, and was sentenced to death. The factual background and procedural history of this case are detailed in this Court's opinion on Schwab's direct appeal. See Schwab v. State, 636 So.2d 3 (Fla.1994). After we affirmed his conviction and sentence of death, Schwab unsuccessfully sought postconviction relief, both before this Court and before the federal courts. See Schwab v. State, 814 So.2d 402 (Fla.2002) (affirming circuit court's denial of motion for postconviction relief and denying petition for writ of habeas corpus); Schwab v. Crosby, 451 F.3d 1308 (11th Cir.2006) (affirming trial court's denial of federal habeas corpus relief), cert. denied, ___ U.S. ___, 127 S.Ct. 1126, 166 L.Ed.2d 897 (2007). On July 18, 2007, Governor Charlie Crist signed a death warrant setting Schwab's execution for November 15, 2007. In response to the signing of the death warrant, Schwab filed a second motion for postconviction relief, raising two claims: (1) Florida's lethal injection method of execution violates the Eighth and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Florida Constitution; and (2) newly discovered evidence reveals that Schwab suffers from neurological brain impairment, which makes his sentence of death constitutionally unreliable. After the State filed its response, the postconviction court summarily denied all claims presented in the successive motion. This appeal follows.

ANALYSIS

In his first claim, Schwab raises numerous subissues relating to whether Florida's lethal injection protocol violates the Eighth Amendment.¹ Schwab first asserts that the postconviction court erred in summarily denying this claim without holding an evidentiary hearing. The State contends that Schwab's challenge to Florida's method of execution is procedurally barred because Schwab should have raised it within one year of the time that lethal injection became a method of execution. We disagree that this claim is procedurally barred. Schwab relies on the execution of Angel Diaz and alleges that the newly created lethal injection protocol does not sufficiently address the problems which occurred in the case of Diaz — a claim that did not exist when lethal injection was first authorized. As this Court has held before, when an inmate presents an Eighth Amendment claim which is based primarily upon facts that occurred during a recent execution, the claim is not procedurally barred. See Buenoano v. State, 565 So.2d 309, 311 (Fla.1990) (holding Eighth Amendment challenge to electrocution was not procedurally barred because the "claim rest[ed] primarily upon facts which occurred only recently during Tafero's execution"); see also Lightbourne v. McCollum, No. SC06-2391 (Fla. order filed Dec. 14, 2006) (relinquishing this same claim to the circuit court for an evidentiary hearing after problems occurred during Diaz's recent execution and implicitly recognizing that this claim was not procedurally barred).

In a somewhat related subclaim, Schwab asserts that the circuit court erred in failing to take judicial notice of the circuit court record in State v. Lightbourne, No. 1981-170CF (Fla. 5th Cir.Ct.) (Lightbourne). Before addressing this claim on the merits, it is important to review the unique circumstances of the Lightbourne case and its impact here.

On December 13, 2006, Angel Diaz was executed by lethal injection, but the lethal chemicals were injected subcutaneously, resulting in an execution which took substantially longer than any previous lethal injection execution in Florida. The next day, Ian Lightbourne and other death row inmates filed an emergency all writs petition, challenging whether Florida's lethal injection protocol violates the Eighth Amendment and requesting a hearing on the matter. This Court relinquished jurisdiction to the circuit court to decide the issues that required factual development, thus implicitly recognizing that the petitioners raised a legally cognizable claim. See Lightbourne v. McCollum, No. SC06-2391 (Fla. order filed Dec. 14, 2006) (relinquishing jurisdiction). While the Eighth Amendment claim was still being litigated in Lightbourne, Governor Crist signed Schwab's death warrant. Schwab then filed a motion for postconviction relief, raising the claim that the procedure for lethal injection is unconstitutional and relying on the newly discovered evidence pertaining to Diaz's execution and the findings of the Governor's Commission on Administration of Lethal Injection.

In the order denying postconviction relief, the court below recognized that judicial oversight of the protocol was appropriate but found that judicial economy would not be served by holding a hearing on the matter when this same issue was already extensively explored by Judge Angel in Lightbourne. Despite this ruling, the court then stated without elaboration: "The parties have stipulated that the Lightbourne hearing testimony may be judicially noticed in this case, but the Court has deliberately elected not to take judicial notice at this time and has not reviewed the evidence presented therein." Schwab challenges this decision, asserting that the postconviction judge should have granted the motion, particularly since both parties stipulated to the introduction of this material and reasonably relied upon the Lightbourne materials being in the record based on the court's initial representations indicating that it would take notice of that testimony.

Section 90.202, Florida Statutes (2006), provides in relevant part:

A court may take judicial notice of the following matters, to the extent that they are not embraced within s. 90.201 [setting forth those items that "must" be judicially noticed]:

....

(6) Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.

See § 90.202(6), Fla. Stat. (2006). Taking judicial notice of such matters is purely a matter of judicial discretion. See id.; Elmore v. Fla. Power & Light Co., 895 So.2d 475, 478 (Fla. 4th DCA 2005). Under the unique circumstances of this case and based on the court's other ruling summarily denying relief, we hold that the postconviction court erred in failing to take judicial notice of the record in Lightbourne. Since Schwab's allegations were sufficiently pled, the postconviction court should have either granted Schwab an evidentiary hearing, or if Schwab was relying upon the evidence already presented in Lightbourne, the court should have taken judicial notice of that evidence.² Cf. Sims v. State, 750 So.2d 622, 623 n. 3 (Fla.1999) (taking judicial notice of records in Provenzano v. Moore, 744 So.2d 413 (Fla.1999); Provenzano v. State, 739 So.2d 1150 (Fla.1999); Jones v. State, 701 So.2d 76 (Fla.1997); and Jones v. Butterworth, 691 So.2d 481 (Fla.1997)). Nevertheless, the postconviction court's error is harmless because this Court considered all of the evidence presented in Lightbourne when reviewing the Eighth Amendment challenge presented here.

In the third subissue that we address, Schwab challenges the circuit court's ruling which denied his public records requests. Schwab filed an initial motion to compel the production of numerous records from Florida's Department of Corrections (DOC), including materials pertaining to the training of execution team members; the records pertaining to the identity and addresses of non-departmental persons who consulted with the DOC concerning execution training; documentation of the qualifications, licenses, training, and education of execution team members; copies of training manuals and other items pertaining to the training of execution team members; medication management and chemical procurement protocols; records of mock executions; scientific and research materials used by the DOC for preparing lethal chemicals; and any non-disclosure agreements between the DOC and suppliers of the chemicals. The DOC responded with numerous objections. After holding a hearing on the requests and objections, the circuit court issued a lengthy order, finding that Schwab did not demonstrate that the requested records related to a colorable claim for relief and concluded that Schwab was on a fishing expedition.³ In order to dispute the finding as to a fishing expedition, Schwab filed a motion for reconsideration with an attachment from a "quality assurance auditor," explaining in detail that the quality assurance auditor needed the requested documents in order to provide an assessment as to the reliability and efficacy of the DOC's execution procedures. The circuit court denied the motion for reconsideration, explaining that since it found that an evidentiary hearing was not warranted, the court found no reason to reconsider its prior decision in...