State v. Irick

• Decision Date: 06 August 2018
• Docket Number: No. M1987-00131-SC-DPE-DD,M1987-00131-SC-DPE-DD
• Parties: STATE of Tennessee v. Billy Ray IRICK
• Court: Tennessee Supreme Court

556 S.W.3d 686

STATE of Tennessee
v.
Billy Ray IRICK

No. M1987-00131-SC-DPE-DD

Supreme Court of Tennessee.

FILED August 6, 2018

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

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; James E. Gaylord, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; Leland Price and Kenneth Irvine,Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

ORDER

PER CURIAM

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Thirty-two years ago a jury convicted Billy Ray Irick of the rape and murder of a seven-year-old child and sentenced him to death. Thirty years ago, this Court affirmed Mr. Irick’s murder conviction and sentence of death. State v. Irick , 762 S.W.2d 121 (Tenn. 1988), cert. denied , 489 U.S. 1072, 109 S.Ct. 1357, 103 L.Ed.2d 825 (1989). Over the course of this decades-long journey, all of Mr. Irick’s subsequent efforts to obtain relief from his conviction and sentence of death in state and federal courts were unsuccessful. See, e.g., Irick v. State , 973 S.W.2d 643 (Tenn. Crim. App. 1998), perm. app. denied (Tenn. June 15, 1998), cert. denied 525 U.S. 895, 119 S.Ct. 219, 142 L.Ed.2d 180 (1998) (state post-conviction case); Irick v. Bell , 565 F.3d 315 (6th Cir. 2009), cert. denied 559 U.S. 942, 130 S.Ct. 1504, 176 L.Ed.2d 118 (2010), reh'g denied 559 U.S. 1088, 130 S.Ct. 2142, 176 L.Ed.2d 759 (2010) (federal habeas corpus case); Irick v. State , No. E2010-02385-CCA-R3-PD, 2011 WL 1991671 (Tenn. Crim. App. May 23, 2011), perm. app. denied (Tenn. Aug. 25, 2011) (state writ of error coram nobis case); Irick v. State , No. E2012-01326-CCA-R3-PD, 2013 WL 1097816 (Tenn. Crim. App. Mar. 18, 2013), perm. app. denied (Tenn. Aug. 27, 2013) (second state writ of error coram nobis case). After Mr. Irick completed the standard three-tier review process—twenty-four years after his conviction and sentence—the State moved this Court to set an execution date pursuant to Tennessee Supreme Court Rule 12(4)(A). This Court granted the State’s motion and scheduled the execution for December 7, 2010, now more than seven years ago.

Thereafter, Mr. Irick asserted that he was incompetent to be executed, and his execution was again put on hold to allow for a judicial determination of that claim, which ultimately was resolved against Mr. Irick. See State v. Irick , 320 S.W.3d 284 (Tenn. 2010), cert. denied 562 U.S. 1145, 131 S.Ct. 916, 178 L.Ed.2d 765 (2011). On motion of the State, this Court rescheduled his execution for January 15, 2014. On December 11, 2013, this Court reset the execution of Mr. Irick to October 7, 2014.

At the time of Mr. Irick’s conviction and sentencing, electrocution was the only method of execution in this State, but by the time his execution dates were set, lethal injection had become the default method of execution in Tennessee.¹ Initially, Tennessee utilized a three-drug lethal injection protocol consisting of Sodium Pentothal (a barbiturate to render the inmate unconscious), Pancuronium Bromide (a paralytic to paralyze the muscles), and Potassium Chloride (to stop the heart). Abdur'Rahman v. Bredesen , 181 S.W.3d 292, 300 (Tenn. 2005). Several death row inmates challenged the constitutionality of

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this protocol in 2002, and this Court rejected the constitutional challenge. Id. Thereafter, on September 27, 2013, the Tennessee Department of Correction ("TDOC") adopted a new single-drug lethal injection protocol providing for injection of a lethal dose of Pentobarbital. West v. Schofield , 519 S.W.3d 550, 552 (Tenn. 2017).

Prior to the October 7, 2014 execution date, Mr. Irick and other death row inmates filed a declaratory judgment action attacking the constitutionality of the newly adopted single-drug lethal injection protocol. This Court again stayed Mr. Irick’s execution until the completion of that litigation, and on March 28, 2017, this Court rejected the constitutional challenge to the single-drug lethal injection protocol. West v. Schofield , 519 S.W.3d 550 (Tenn. 2017), cert. denied sub nom. West v. Parker , ––– U.S. ––––, 138 S.Ct. 476, 199 L.Ed.2d 364 (2017) and Abdur'Rahman v. Parker , ––– U.S. ––––, 138 S.Ct. 647, 199 L.Ed.2d 545 (2018).

On January 8, 2018, TDOC adopted a three-drug protocol, which provides for the use of Midazolam, Vecuronium Bromide, and Potassium Chloride, as an alternative to the single-drug protocol this Court upheld in West v. Schofield. Ten days later, on January 18, 2018, and pursuant to Tennessee Supreme Court Rule 12(4)(E), this Court sua sponte reset the execution date for Mr. Irick to August 9, 2018.

On February 20, 2018, Mr. Irick and thirty-two other death row inmates filed in the Chancery Court for Davidson County a declaratory judgment action challenging the constitutionality of the newly adopted alternative three-drug lethal injection protocol. See Abdur'Rahman v. Parker , No. 18-183-III (Nashville Chancery Division III). While that declaratory judgment action was pending, on July 5, 2018, TDOC again revised the lethal injection protocol to eliminate the single-drug protocol so that the three-drug protocol became the exclusive method of execution by lethal injection in Tennessee. On July 19, 2018, the Chancery Court clarified that the only claim that would be adjudicated in the declaratory judgment action was the constitutional challenge to the three-drug protocol adopted on July 5, 2018.² Id.

After a ten-day trial, on July 26, 2018, the Davidson County Chancery Court dismissed the complaint for declaratory judgment, finding that the plaintiffs had failed to establish that Tennessee’s three-drug lethal injection protocol was unconstitutional or unlawful. Id. On July 30, 2018, the plaintiffs filed a notice of appeal. See Abdur'Rahman v. Parker , No. M2018-01385-COA-R3-CV. On that same day, Mr. Irick filed a Motion to Vacate Execution Date. On August 2, 2018, the State filed its Response to the Motion to Vacate Execution Date. On August 3, 2018, Mr. Irick filed a Reply to the State’s Response.

556 S.W.3d 689

Having set forth much of the procedural history of these cases involving Mr. Irick, we now turn to the specific matter currently before the Court. Significantly, effective July 1, 2015, this Court amended its rule pertaining to what a prisoner must show to be entitled to a stay of execution under these circumstances. See Tenn. Sup. Ct. R. 12(4)(E). After the 2015 amendment to Tennessee Supreme Court Rule 12(4)(E), this Court will not stay an execution pending resolution of collateral litigation in state court "unless the prisoner can prove a likelihood of success on the merits of that [collateral] litigation." Tenn. Sup. Ct. R. 12(4)(E). The inmates' currently pending challenge to the lethal injection protocol clearly constitutes collateral litigation. Thus, before this Court can stay Mr. Irick’s execution date, Mr. Irick must prove that he has a likelihood of succeeding on the merits of that litigation. "In order to establish a likelihood of success on the merits of a claim, a plaintiff must show more than a mere possibility of success." Six Clinics Holding Corp. II v. Cafcomp Sys. , 119 F.3d 393, 402 (6th Cir. 1997). Therefore, we first must consider the elements that Mr. Irick must prove to prevail in the pending action to determine whether he has satisfied this standard and established more than a mere possibility of success on the merits.

The constitutional analyses set forth by the United States Supreme Court in Glossip v. Gross , ––– U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), and Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and by this Court in West v. Schofield , 519 S.W.3d at 550, hold that to prevail on a claim that a particular method of execution amounts to cruel and unusual punishment, an inmate must establish both that the method in question presents an imminent risk of serious illness and needless suffering and that a feasible, readily implemented alternative method of execution exists that will significantly reduce a substantial risk of severe pain. The trial court held that the inmates failed to establish either of these prongs. We now turn to our analysis as to whether Mr. Irick has demonstrated a likelihood of success on both of these elements in his motion.

We turn first to the requirement that Mr. Irick demonstrate a likelihood of success in establishing a feasible, readily implemented alternative method of execution. Although the inmates asserted that a single-drug method using only Pentobarbital was a quicker and more humane way to execute, they did not offer any direct proof that this method is available to TDOC. Instead, the inmates chose to simply attempt to discredit the State’s witnesses on this issue. Testimony from the State’s witnesses established that they were unable to obtain Pentobarbital through ordinary transactional efforts, despite many efforts to do so. The trial court accredited this testimony as to the efforts made by TDOC to acquire Pentobarbital and concluded that Pentobarbital was not available. As such, the trial court found that the inmates had failed to establish this element. We are unwilling to presume, as does the dissent, that Pentobarbital is available to...