IN THE SUPREME COURT OF FLORIDA
CASE NO. SC08-1986
______
BILLY LEON KEARSE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR ST. LUCIE COUNTY, FLORIDA
______
INITIAL BRIEF OF APPELLANT ______
NEAL A. DUPREE Capital Collateral Regional Counsel - South
PAUL KALIL Florida Bar No. 0174114 Assistant CCRC-South
CAPITAL COLLATERAL REGIONAL COUNSEL – SOUTH 101 N.E. 3rd Avenue Suite 400 Fort Lauderdale, Florida 33301 (954) 713-1284
COUNSEL FOR APPELLANT PRELIMINARY STATEMENT
This proceeding involves an appeal of the circuit court's summary denial of relief on Mr. Kearse’s successive motion for post-conviction relief filed pursuant to Fla. R. Crim. P. 3.851.
This appeal involves an Eighth Amendment challenge to Florida’s method of execution.
The following symbols will be used to designate references to the record in this appeal:
"R._____" -- record on direct appeal to this Court;
"PCR._____" -- record on postconviction appeal;
“PCR2._____” – record on successive postconviction appeal.
ii REQUEST FOR ORAL ARGUMENT
Mr. Kearse has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Kearse, through counsel, accordingly urges that the Court permit oral argument.
iii TABLE OF CONTENTS
PRELIMINARY STATEMENT...... ii
REQUEST FOR ORAL ARGUMENT...... iii
TABLE OF CONTENTS...... iv
STATEMENT OF THE CASE AND FACTS...... 1
SUMMARY OF ARGUMENT...... 9
ARGUMENT I...... 10
THE CIRCUIT COURT ERRED IN DENYING MR. KEARSE AN EVIDENTIARY HEARING ON HIS CLAIM THAT FLORIDA’S LETHAL INJECTION STATUTE AND THE EXISTING LETHAL INJECTION PROCEDURES VIOLATE THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 17 AND ARTICLE II, SECTION 3 OF THE FLORIDA CONSTITUTION; THE STATUTE AND PROCEDURES CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT...... 10
A. Mr. Kearse is entitled to an evidentiary hearing...... 10
B. Florida is not Kentucky...... 21
ARGUMENT II...... 26
THE DENIAL OF ACCESS TO PUBLIC RECORDS UNDER FLA. R. CRIM. P. 3.852 WAS ERROR AND VIOLATED MR. KEARSE’S RIGHTS TO DUE PROCESS...... 26
CONCLUSION AND RELIEF SOUGHT...... 38
CERTIFICATE OF SERVICE...... 39
CERTIFICATE OF COMPLIANCE...... 39
iv TABLE OF AUTHORITIES
Cases
Baze v. Rees, 128 S. Ct. 1520 (2008)...... passim
Baze v. Rees, 128 S. Ct. 34 (2007)...... 3
Booker v. State, 969 So. 2d 186 (Fla. 2007)...... 10
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985)...... 15
Davis v. Florida, 742 So. 2d 233 (Fla. 1999)...... 24
Farmer v. Brennan, 511 U.S. 825 (1994)...... 25
Ford v. Wainwright, 477 U.S. 399 (1986)...... 16
Hill v. State, 921 So. 2d 579 (Fla. 2006)...... 27
Kearse v. State, 2007 Fla. LEXIS 1534; 32 Fla. L. Weekly S 525 (Fla. 2007)...... 3
Kearse v. State, 662 So. 2d 677 (Fla. 1995)...... 1
Kearse v. State, 770 So. 2d 1119 (Fla. 2000)...... 1
Lightbourne et al. v. McCollum, SC06-2391 (February 9, 2007)...... 2
Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007)...... passim
Lightbourne v. State, 549 So. 2d 1364 (Fla. 1989)...... 11
Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006)...... 28
Muehleman v. Dugger, 623 So. 2d 480 (Fla. 1993)...... 26
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)...... 16
Porter v. State, 653 So. 2d 375 (Fla. 1995)...... 26
Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999)...... 24
Schwab v. State, 969 So. 2d 318 (Fla. 2007)...... passim
State v. Coney, 845 So. 2d 120 (Fla. 2003)...... 10
v State v. Kokal, 562 So. 2d 324 (Fla. 1990)...... 26
Taylor v. Crawford, 487 F. 3d 1072 (8th Cir. 2007)...... 27
Teffeteller v. Dugger, 676 So. 2d 369 (Fla. 1996)...... 16, 17
Walton v. Dugger, 643 So. 2d 1059 (Fla. 1993)...... 26
Rules
Amendments to Fla. R. Crim. Pro. 3.851, 772 So. 2d 488 Fla. 2000)...... 10
Fla. R. Crim. P. 3.851...... 3
Fla. R. Crim. P. 3.852(i)...... 4
Fla. R. Crim. P. 3.852(i)(2)...... 31
Constitutional Provisions
Fla. Const. Art. I, Sec. 17...... 10
Fla. Const. Art. II, Sec. 3...... 10
U.S. Const. Amend. VIII...... 9, 10
vi STATEMENT OF THE CASE AND FACTS
The Circuit Court for the Nineteenth Judicial Circuit, in and for St. Lucie County, Florida, entered the judgment of conviction and sentences of death. Mr. Kearse was found guilty of first degree murder and robbery with a firearm in October,
1991. The jury voted 11 to 1 in favor of death. The Court sentenced Mr. Kearse to die in the electric chair. This Court affirmed the conviction but vacated the death sentence and remanded for resentencing because of errors relating to the penalty phase instructions and the improper doubling of aggravating circumstances. Kearse v. State, 662 So. 2d 677
(Fla. 1995).
Upon resentencing, Mr. Kearse was again sentenced to death.
This Court upheld that sentence on direct appeal. Kearse v.
State, 770 So. 2d 1119 (Fla. 2000). Mr. Kearse timely petitioned the United States Supreme Court for certiorari. This petition was denied on March 26, 2001.
On March 1, 2004, Mr. Kearse filed an amended motion to vacate judgments of conviction and sentence raising several issues. The circuit court denied Mr. Kearse’s motion as to all claims. Mr. Kearse appealed to this Court, and filed a Petition for Writ of Habeas Corpus challenging the constitutionality of
Florida’s lethal injection procedures on May 12, 2006.
1 On December 13, 2006, while Mr. Kearse’s habeas petition was pending in this Court, the State of Florida botched the execution of death row inmate Angel Nieves Diaz. On December
14, 2006, Mr. Kearse joined in a petition filed in this Court challenging Florida’s lethal injection procedures under the
Eighth Amendment to the U.S. Constitution and the corresponding provision of the Florida Constitution (PCR2. 1809). Mr.
Kearse’s interest in the petition was dismissed without prejudice. Lightbourne et al. v. McCollum, SC06-2391 (February
9, 2007). At that time, Mr. Kearse’s habeas corpus petition was still pending in this Court.
On May 9, 2007, the Florida Department of Corrections (DOC) issued new or revised protocols for carrying out the death penalty. After eleven days of testimony and evidence regarding the Diaz execution and Florida’s intended method for carrying out lethal injection, Marion County Circuit Court Judge Carven
Angel recognized the new lethal injection procedures to be constitutionally deficient. On July 22, 2007, Judge Angel issued a temporary stay against the setting of an execution date in Petitioner Lightbourne’s case. Just over a week later, on
August 1, 2007, the Department of Corrections issued yet another new Execution by Lethal Injection Procedure (PCR2. 449).
This Court denied Mr. Kearse’s petition for writ of habeas
2 corpus on August 30, 2007, but did not consider Mr. Kearse’s
lethal injection claim:
As a result of the execution of Angel Diaz, litigation concerning the constitutionality of Florida’s lethal injection procedures is ongoing in Lightbourne v. McCollum, No. SC06-2391 (Fla. petition filed Dec. 14, 2006). We do not consider those issues here and express no opinion regarding the merits of any subsequent challenge Kearse may bring related to lethal injection.
Kearse v. State, 2007 Fla. LEXIS 1534; 32 Fla. L. Weekly S 525
(Fla. 2007). Mr. Kearse’s Motion for Rehearing was denied on
November 30, 2007. The Mandate issued on December 17, 2007.
While Mr. Kearse’s habeas petition was pending in this
Court, on September 25, 2007, the United States Supreme Court
granted a petition for writ of certiorari in the case of Baze v.
1 Rees, 128 S. Ct. 34 (2007), to review the constitutionality of the lethal injection procedures used in Kentucky. The Kentucky lethal injection protocol involves the same three-drug cocktail as Florida’s protocol.
Based on the foregoing, two days after this Court issued its Mandate, on December 19, 2007, Mr. Kearse filed a Successive
Motion to Vacate Judgments and Sentence pursuant to Fla. R.
Crim. P. 3.851 (PCR2. 2-109). On January 3, 2008, Mr. Kearse
1 The U.S. Supreme Court subsequently upheld Kentucky’s lethal injection procedures and set out the legal standard that governs Eighth Amendment challenges to methods of execution. Baze v. Rees, 128 S. Ct. 1520 (2008).
3 filed Demands for Additional Public Records Pursuant to Fla. R.
Crim. P. 3.852(i) from the Office of the Attorney General,
Governor Charlie Crist, Florida Department of Law Enforcement
and Florida Department of Corrections (PCR2. 201-227). The
circuit court stayed Mr. Kearse’s postconviction motion pending
the United States Supreme Court’s disposition in Baze (PCR2.
267). After the Supreme Court decided Baze v. Rees, 128 S. Ct.
1520 (2008), the circuit court lifted the stay of Mr. Kearse’s successive motion on May 21, 2008 (PCR2. 342). Mr. Kearse requested leave to amend his motion based on the Supreme Court’s ruling in Baze. The circuit court granted Mr. Kearse’s motion
to amend by July 1, 2008 (PCR2. 344).
Mr. Kearse filed his final Amended Motion to Vacate
Judgments and Sentence on June 30, 2008 (PCR2. 358). At the
time of filing, issues related to Mr. Kearse’s Demands for
Additional Public Records had not been resolved. Mr. Kearse
filed a Motion for Hearing on Outstanding Demands for Additional
Public Records (PCR2. 351).
In support of his lethal injection claim, Mr. Kearse
alleged in his Rule 3.851 motion that Dr. William Hamilton, the
Medical Examiner who performed the autopsy of Angel Diaz,
confirmed that nothing about Mr. Diaz’s health would have
affected the way his body processed the lethal injection
4 chemicals. In fact, the execution of Mr. Diaz took longer than anticipated because DOC personnel failed to properly insert the needles into Mr. Diaz’s arms and, as a result, the fluids were not flowing in his veins. As a result of the Diaz execution, then-Governor Bush suspended all executions in Florida and ordered the creation of a commission to examine the state's lethal injection process. Mr. Kearse alleged below that there is evidence that during the Diaz execution the primary executioner injected the paralytic agent, pancuronium bromide, into Angel Diaz without knowing whether the first drug, the sodium thiopental, which is used as an anesthetic, had taken effect (PCR2. 364-5).
The Governor’s Commission on the Administration of Lethal
Injection issued a final report on March 1, 2007 (PCR2. 431).
The Department of Corrections put together a task force in response and subsequently held a press conference to announce the promulgation of the May 9, 2007 lethal injection procedures.
Florida carries out lethal injections by injecting the same three chemicals used by the State of Kentucky and all other states that carry out lethal injections: 1) sodium thiopental;
2 2) pancuronium bromide; and, 3) potassium chloride. Except for
2 Sodium thiopental is a short-acting barbiturate that begins to wear off almost immediately. Pancuronium bromide is a
5 the pronouncement of death, there is no specific requirement
that a physician be involved in the process. The administration
of the drugs is performed by an executioner who has no medical
background and may be only 18 years old. The assessment of
consciousness is performed by a prison warden whose only medical
training is that required of any guard or correctional officer.
Mr. Kearse alleged that the most critical aspects of the
lethal injection process, specifically the administration of the
drugs, the assessment of consciousness and monitoring the inmate
for consciousness throughout the procedure, remain inadequate to
protect against the foreseeable risk of pain. The
administration of the drugs and the assessment of consciousness
are being carried out by non-medical personnel, while the
monitoring of consciousness throughout the procedure is done
neuromuscular blocking agent that paralyzes all voluntary muscle movements, but has no impact on the ability to feel pain. It prevents a person from speaking, moving, or expressing any other outward signs of pain or consciousness, but is extremely agonizing in a conscious person as the inflicted person suffocates just as if he or she was drowning with weights on his or her body to prevent movement. Potassium chloride, otherwise known as road salt used to melt ice, is injected to cause cardiac arrest, but is excruciatingly painful in a conscious person. When used in lethal injections, sodium thiopental serves the purpose of rendering the condemned inmate unconscious. Pancuronium bromide is supposed to stop respiration, and potassium chloride is supposed to cause cardiac arrest. Because potassium chloride stops the heart from beating, death can and would be caused without the use of pancuronium bromide.
6 from another room via a television monitor by personnel of unknown qualifications and background (PCR2. 370-2).
Mr. Kearse also alleged that prior to Angel Diaz’s execution, there was evidence DOC was aware of the need for a medical determination of unconsciousness following the administration of sodium pentothal, and prior to the administration of the two remaining drugs in the three drug cocktail, DOC did not provide for such a determination. In
August of 2006, DOC recognized that provisions should be made for either an anesthesiologist or a bispectral index monitor to monitor the inmate’s level of consciousness, but failed to include such a provision in its protocol. Mr. Kearse further alleged that Dr. David Varlotta, an anesthesiologist who served on the Governor’s Commission on Lethal Injection, expressed concern regarding whether individuals without advanced medical training would have the ability to adequately assess the level of anesthetic depth. Based on the facts alleged in the Rule
3.851 motion, Mr. Kearse sought an evidentiary hearing (PCR2.
381).
The circuit court conducted a combined public records and case management/Huff hearing on September 5, 2008. On September
11, 2008, the Court issued its order summarily denying Mr.
7 Kearse’s Motion to Vacate Judgments and Sentence, and denying
Mr. Kearse’s demands for additional public records (PCR2. 1945).
This appeal follows.
8 SUMMARY OF ARGUMENT
Summary of Argument I
In Baze v. Rees, 128 S. Ct. 1520 (2008), the United States
Supreme Court set out legal standard that governs Eighth
Amendment challenges to methods of execution. The decision in
Baze left open the important question of whether Florida’s lethal injection protocol is constitutional, and whether a protocol that is constitutional on its face may violate the
Eighth Amendment when it is not carried out as written. The botched execution of Angel Diaz demonstrates that the mere existence of a written protocol is not enough to safeguard against even the most predictable problems and therefore, that any evaluation of an Eighth Amendment challenge to a method of execution must go beyond the written document. Now that the high Court has better defined the standards by which an Eighth
Amendment method-of-execution challenge may be established, Mr.
Kearse seeks the opportunity to litigate and prove his claim at a full and fair evidentiary hearing.
Summary of Argument II
The circuit court abused its discretion in denying Mr.
Kearse access to public records to which he is entitled.
9 ARGUMENT I
THE CIRCUIT COURT ERRED IN DENYING MR. KEARSE AN EVIDENTIARY HEARING ON HIS CLAIM THAT FLORIDA’S LETHAL INJECTION STATUTE AND THE EXISTING LETHAL INJECTION PROCEDURES VIOLATE THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 17 AND ARTICLE II, SECTION 3 OF THE FLORIDA CONSTITUTION; THE STATUTE AND PROCEDURES CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.
A. Mr. Kearse is entitled to an evidentiary hearing.
An evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. Amendments to Fla. R. Crim. Pro. 3.851, 772 So.
2d 488, 491 n.2 (Fla. 2000)(endorsing the proposition that “an evidentiary hearing is mandated on initial motions which assert
. . . legally cognizable claims which allege an ultimate factual basis”). To the extent there is any question as to whether the movant has made a facially sufficient claim requiring a factual determination, the Court will presume that an evidentiary hearing is required. Booker v. State, 969 So. 2d 186, 195 (Fla.
2007). A court’s decision whether to grant an evidentiary hearing is subject to de novo review. State v. Coney, 845 So.
2d 120, 137 (Fla. 2003).
Mr. Kearse sought an evidentiary hearing on his claim challenging Florida’s lethal injection procedures. The Rule
3.851 motion pled facts regarding the merits of his claim which must be accepted as true. When these facts are accepted as
10 true, it is clear that the files and records in the case do not
conclusively rebut Mr. Kearse’s claim and that an evidentiary
hearing is required. See Lightbourne v. State, 549 So. 2d 1364,
1365 (Fla. 1989).
The circuit court denied Mr. Kearse an evidentiary hearing, relying in part on this Court’s decision in Schwab:
Kearse fails to allege evidence, that even if not procedurally barred, would establish that the current lethal injection protocol and procedures are constitutionally defective resulting in a decision different than that reached in Schwab v. State, 33 Fla. L. Weekly S431 (June 27, 2008), cert. denied, stay denied, Schwab v. Fla., 2008 LEXIS 5284 (U.S. July 1, 2008); Schwab v. State, 969 So. 2.d 318 (Fla. 2007), cert. denied, 76 U.S.L.W. 3620 (May 19, 2008); Lebron v. State, 982 So. 2d 649 (Fla. 2008); Woodel v. State, 985 So. 2d 524 (Fla. 2008); and Griffin v. State, No. SC06-1055, 2008 Fla. LEXIS 1086, 2008 WL 2415856 (Fla. June 2, 2008).
(PCR2-1947).
In Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007), this Court affirmed the ultimate denial of Lightbourne’s challenge to Florida’s lethal injection procedures. In
Lightbourne, a lengthy evidentiary hearing had been held, and
this Court found competent and substantial evidence in the
record to support the circuit court’s factual conclusions. At
the same time that this Court issued its opinion in Lightbourne,
it also issued an opinion in Schwab v. State, 969 So. 2d 318
(Fla. 2007). In Schwab, unlike in Lightbourne, the circuit
11 court had not held an evidentiary hearing on an Eighth Amendment
challenge to Florida’s lethal injection procedures in light of
the Diaz execution.
Beyond simply being able to present the claim and obtain
merits consideration, this Court indicated in Schwab that when
presented with a timely Rule 3.851 challenging lethal injection
after the Diaz execution, the movant is entitled to have the
circuit court either 1) take judicial notice of the evidence
presented in the Lightbourne proceedings, or 2) conduct an
evidentiary hearing on the claim:
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.
3 Schwab, 969 So. 2d at 322-23 (emphasis added).
After finding error in Schwab because neither an
evidentiary hearing was conducted nor judicial notice was taken,
this Court concluded that the error was harmless. Mr. Schwab
3 This Court also noted in its Schwab opinion that the circuit court there had asserted that judicial economy would not be served if it were to hold an evidentiary hearing on the same issue litigated in Lightbourne. Clearly, this Court did not accept this reasoning when it found error.
12 had specifically asked for the circuit court to take judicial
notice of the evidence presented in Lightbourne. The circuit
court’s refusal to take judicial notice of that evidence was
found to be harmless error “because Schwab has not presented any
argument as to specific evidence he wanted to present in this
case that had not been presented in the Lightbourne proceeding.”
Schwab, 969 So. 2d at 323, n. 2.
Like Schwab, Mr. Kearse presented a facially sufficient
lethal injection challenge based upon the circumstances of the
Angel Diaz execution and the subsequent changes to Florida’s
lethal injection procedures. Unlike Schwab, Mr. Kearse did not
ask the circuit court to take judicial notice of the evidence
presented in Lightbourne, but instead specifically requested
that an evidentiary hearing be conducted in his case at which he
is able to present evidence in support of his claim. Unlike
Schwab, Mr. Kearse specifically invoked his due process right to
notice and reasonable opportunity to be heard. Unlike Schwab,
Mr. Kearse asked for an evidentiary hearing at which he would be
represented by counsel, able to present evidence, confront the
State’s evidence, and make his own arguments based upon the
evidence presented challenging Florida’s lethal injection
procedures. Unlike Mr. Schwab, Mr. Kearse has sought, and
continues to seek, the opportunity to present evidence not
13 presented at the Lightbourne evidentiary hearing. Under the
clear language in Schwab, the circuit court erred in denying
Kearse’s lethal injection challenge without conducting an
evidentiary hearing in his case.
Because he asked for an evidentiary hearing and did not
seek to invoke judicial notice, the specific error presented in
Kearse’s case is different than the error this Court found in
Schwab’s case. While an erroneous ruling denying a party
judicial notice can be evaluated for harmlessness, the erroneous
denial of an evidentiary hearing is a different matter. At an
evidentiary hearing Mr. Kearse would have the assistance of
counsel, and the opportunity to present evidence and challenge
evidence, in support of a constitutional claim. The denial of
an evidentiary hearing in this instance is a structural defect -
a basic denial of that bedrock due process principle of notice
and opportunity to be heard and present material evidence.
Furthermore, a lethal injection challenge involves first a
resolution of factual issues, and then second the application of
the legal standard, which was most recently enunciated in Baze
v. Rees, 128 S. Ct. 1520 (2008). When this Court affirmed the
decision in Lightbourne, a case heard over ten days, this Court employed the standard of review requiring it to give difference to the circuit court’s findings of fact. As result, this
14 Court’s ultimate decision affirming was premised upon whether
there was competent and substantial evidence to support the
circuit court’s ruling. Certainly, a different judge hearing
disputed evidence could reach different factual conclusions that
would produce a different final result. In another words, the
decision in Lightbourne rests upon factual findings. It cannot be divorced from the facts that were found by the circuit court and relied upon by this Court in affirming.
Similarly, the decision in Baze produced a legal standard.
The United States Supreme Court explained the standard by which the facts demonstrated at an evidentiary hearing were to be measured. It is not a decision that applies in a vacuum. It requires the trier of fact to make findings to which the legal standard is applied to determine whether an Eighth Amendment violation has been demonstrated. As a result, neither Baze nor
Lightbourne constitute a ruling that regardless of what facts
are found by the trier of fact, Florida’s lethal injection
procedure is constitutional.
The touchstone of due process is notice and reasonable
opportunity to be heard. The right to due process entails
“‘notice and opportunity for hearing appropriate to the nature
of the case.’” Cleveland Bd. of Ed. v. Loudermill, 470 U.S.
532, 542 (1985), quoting Mullane v. Central Hanover Bank & Trust
15 Co., 339 U.S. 306, 313 (1950). “[F]undamental fairness is the
hallmark of the procedural protections afforded by the Due
Process Clause.” Ford v. Wainwright, 477 U.S. 399, 424
(1986)(Powell, J., concurring in part and concurring in the judgment). The deprivation of this bedrock due process right is structural error that can be no more harmless than the denial of the right to trial by jury.
This Court relied upon this basic due process guarantee in
Teffeteller v. Dugger, 676 So. 2d 369 (Fla. 1996). There,
several cases were consolidated in front of one judge for
evidentiary hearing. At issue in these cases was the impact
upon a capital defendant’s right to effective and conflict-free
representation at trial when the particular public defender
assigned as counsel was a card carrying special deputy sheriff.
At the consolidated proceeding, the joined capital defendants
were present in court with counsel for some of the testimony.
However, large portions of the proceedings were conducted with
only one defendant and his counsel in the courtroom. This Court
found that capital post-conviction movants were entitled to be
present with counsel for the entirety of their own separate
evidentiary hearing on the individual claim, even though each
defendant’s claim was premised upon common factual allegations
concerning the special deputy status that was enjoyed by the
16 public defender. Under Teffeteller, due process requires each
Rule 3.851 movant to a separate evidentiary hearing at which he
can be present, be represented by counsel and present evidence
in support of his claim while confronting any evidence presented
by the State. Because the failure to provide due process in
this fashion is structural error, this Court in Teffeteller did not look to whether the error was harmless before ordering the cases all remanded and separate evidentiary hearings to be conducted in each defendant’s case.
To the extent that this Court disagrees and requires Kearse to show his prejudice - something he was not in a position to do in circuit court - this Court would have to remand in order to provide him with an opportunity to make that showing. It would be the height of absurdity to say that Kearse was deprived of his right to be heard, but that he was not prejudiced because he has not demonstrated prejudice when he has never been given the opportunity to demonstrate prejudice.
Mr. Kearse did set forth in his amended motion - filed after this Court rendered its Lightbourne opinion - a proffer of the evidence that he was aware of at that point in time. He proffered that he would call Sara Dyehouse as a witness to discuss the memoranda that she wrote in June through August of
2006 concerning the revisions to the lethal injection protocol
17 (PCR2. 377). He proffered that he expected Ms. Dyehouse to testify that through her interviews of the execution team and examination of events at prior executions, she had determined that an unconsciousness determination was necessary following the administration of sodium pentothal and that the procedures that had been followed in Florida did not provide for such a determination. He proffered that Ms. Dyehouse would testify that she advised the Department of Corrections that such a determination was necessary to eliminate the risk of unnecessary pain that would result from the administration of painful drugs to a conscious condemned inmate during an execution. Ms.
Dyehouse would testify that not only was this an unnecessary risk of pain, it was an entirely foreseeable risk of unnecessary pain. Ms. Dyehouse would testify that despite her identification of this specific defect in the lethal injection procedures, the Department of Corrections decided to ignore her warnings and did not adopt a procedure for making any kind of unconsciousness determination.
Mr. Kearse also proffered that he would call former DOC
Secretary McDonough to testify regarding Ms. Dyehouse’s memoranda (PCR2. 377). Though Secretary McDonough did testify during the Lightbourne proceedings, he did not testify about Ms.
Dyehouse or the memoranda that she prepared. In fact, when
18 asked who on his legal staff worked on preparing the revised protocols in the summer of 2006, Secretary McDonough did not recall Ms. Dyehouse’s involvement and thus gave no testimony in the Lightbourne proceedings regarding Ms. Dyehouse or her memoranda or the content and recommendations contained therein.
Mr. Kearse proffered that the Secretary would testify in conformity with his statements to newspaper reporters following the conclusion of the Lightbourne evidentiary hearing that the decision to ignore Ms. Dyehouse’s recommendation was premised upon matters totally unrelated to whether the risk of unnecessary pain had been eliminated or ameliorated in some fashion.
Similarly, Mr. Kearse proffered that he would call Gretl
Plessinger to testify (PCR2. 378). Though she testified during the Lightbourne proceedings, she did not testify about the
Dyehouse memoranda or the recommendations contained therein.
Subsequent to the Lightbourne hearing she too has made statements to the media regarding the decision not to provide for an unconsciousness determination. According to Plessinger’s statements, the decision to reject the recommendation was made for the Department’s convenience and not because there had been a determination that no risk of unnecessary pain existed.
19 Mr. Kearse also proffered that he would call Dr. David
Varlotta, an anesthesiologist, who was on the Lethal Injection
Commission that was put together after the Diaz execution to investigate what happened and make recommendations as to what changes were warranted. Following this Court’s decision in
Lightbourne finding that there was sufficient evidence in the record to support the circuit court’s conclusion that employees of the Department of Corrections with no medical training could make an unconsciousness determination, Dr. Varlotta advised the
St. Petersburg Times: “I cannot agree that individuals without advanced medical training would have the ability to adequately assess the level of anesthetic depth.” Dr. Varlotta was not called as a witness during the Lightbourne proceedings. Mr.
Kearse proffered that he would present Dr. Varlotta’s testimony that procedures currently in place are not adequate to ensure that there is no risk of unnecessary pain.
The right to present evidence and be heard on questions of fact was afforded to Mr. Lightbourne, but was not afforded to
Mr. Kearse. This violated the right to due process as provided the Fourteenth Amendment to the U.S. Constitution and the corresponding provision in the Florida Constitution. The circuit court erred in refusing to grant Mr. Kearse an evidentiary hearing on his challenge to Florida’s lethal
20 injection procedure in light of the Diaz execution. Schwab.
The proper remedy here is remand so that Kearse can be provided with the same opportunity that was extended to Mr. Lightbourne - the opportunity to present the evidence supporting his facially sufficient challenge to Florida’s lethal injection procedure.
This Court should reverse and remand the summary denial of Mr.
Kearse’ lethal injection claim.
B. Florida is not Kentucky.
While Mr. Kearse’s motion for postconviction relief was pending in the circuit court, the United States Supreme Court issued its opinion upholding the constitutionality of Kentucky’s lethal injection protocol and setting out the legal standard that governs Eighth Amendment challenges to methods of execution. Baze v. Rees, 128 S. Ct. 1520 (2008). The standard
articulated in Baze requires plaintiffs to first establish a
“substantial risk of harm.” Id. at 1531. If an alternative
lethal injection procedure is proffered, Baze requires the
plaintiff to show that the alternative procedure is “feasible,
readily implemented, and in fact significantly reduce[s] a
substantial risk of severe pain. If a State refuses to adopt
such an alternative in the face of these documented advantages,
without a legitimate penological justification for adhering to
its current method of execution, then a State’s refusal to
21 change its method can be viewed as “cruel and unusual” under the
Eighth Amendment.” Id. at 1532.
The Baze decision turned wholly on Kentucky’s written
protocol. It left open the important question of whether a
protocol that is constitutional on its face may violate the
Eighth Amendment when it is not carried out as written. The
United States Supreme Court upheld the constitutionality of
Kentucky’s lethal injection procedures on the basis that, in
light of the safeguards included in the written protocol, the
risks identified by the petitioners were not so substantial or
imminent as to amount to an Eighth Amendment violation. Baze,
128 S. Ct. at 1535. Among the safeguards lauded by the Court were the written protocol’s requirement that “members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman”; that “IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year”; that “[t]hese sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers”; and that “the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences.”
22 Id. at 1533-34. The Court concluded that “[t]hese redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected.” Id.
Florida’s latest written protocol, on the other hand, lists the minimum statutory qualifications for the medically trained participants, but Mr. Kearse does not know what licensure the technical team members possess; does not know if they have been credentialed in a healthcare institution to provide medical care; does not know if they have ever had had their license revoked; and does not know if they have background problems, pending criminal investigations, convictions and/ or arrests or other things that would make them inappropriate for the positions they fill on the execution team. Mr. Kearse does not know if they have experience starting IVs that will be used for inducing anesthesia, or whether those responsible for starting a central IV line, with or without a cut-down, do so routinely in their daily practice. Incredibly, Mr. Kearse does not even know whether the medically-trained execution team members who participated in the botched Angel Diaz execution will participate in future executions.
23 Furthermore, Florida’s unique history of deviating from
written execution protocols reveals the gravity of the question
of whether a protocol that is constitutional on its face may
violate the Eighth Amendment when it is not carried out as
written. See, e.g., Davis v. Florida, 742 So. 2d 233 (Fla.
1999) (relying on the presumption but expressing concern with
respect to the electric chair that “once again” . . . “there is
an indication that [the Florida Department of Corrections] has
not followed the protocol established for the appropriate
functioning of the electric chair and carrying out of the death
penalty.”); Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999)
(detailing the subsequent bloody execution of Allen Lee Davis, only a week after his challenge was denied, which eventually led to the decision to adopt lethal injection as a method of execution in Florida). Mr. Kearse’s claim was based in large part on the State of Florida’s response to the 2006 botched execution of Angel Diaz. The Diaz execution demonstrates that although a state may have a written protocol in place that contains myriad safeguards, if the people carrying out the execution choose not to follow the protocol, its existence does little to mitigate the risk of harm.
Florida’s August 16, 2006 written lethal injection protocol, under which Diaz was executed, contained some
24 safeguards similar to those contained in the Kentucky written protocol. Yet despite the written requirement for training, and despite the written sequence for injecting drugs, and despite the written contingency plan for what to do if venous access became compromised, this Court concluded that “it is undisputed that in the execution of Angel Diaz, the intravenous lines were not functioning properly because the catheters passed through his veins in both arms and thus delivered the lethal chemicals into soft tissue, rather than into his veins.” Lightbourne v.
McCollum, 969 So. 2d 326, 343 (Fla. 2007).
In Baze, the United States Supreme Court reiterated that
“an isolated mishap alone does not give rise to an Eighth
Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a ‘substantial risk of serious harm.’”
Baze, 128 S. Ct. at 1531, citing Farmer v. Brennan, 511 U.S.
825, 842 (1994). The facts of the Diaz execution make clear that the botch cannot be written off simply as an “isolated mishap.” Despite the written protocol’s requirement that the execution team be qualified and trained to carry out their duties, the execution team observed Diaz moving, talking, and struggling long after the first administration of sodium thiopental, and then went ahead and injected pancuronium bromide
25 and potassium chloride into him while he was still conscious.
The Diaz execution demonstrates that the mere existence of a
written protocol is not enough to safeguard against even the
most predictable problems and therefore, that any evaluation of
an Eighth Amendment challenge to a method of execution must go
beyond the written document. Now that the high Court has better
defined the standards by which an Eighth Amendment method-of-
execution challenge may be established, Mr. Kearse seeks the
opportunity to litigate and prove his claim.
ARGUMENT II
THE DENIAL OF ACCESS TO PUBLIC RECORDS UNDER FLA. R. CRIM. P. 3.852 WAS ERROR AND VIOLATED MR. KEARSE’S RIGHTS TO DUE PROCESS.
Mr. Kearse must obtain all public records in existence
which may bear on the issues in this case or risk issues being
procedurally barred. Porter v. State, 653 So. 2d 375 (Fla.
1995). Mr. Kearse is entitled to the public records. Muehleman
v. Dugger, 623 So. 2d 480 (Fla. 1993); Walton v. Dugger, 643 So.
2d 1059 (Fla. 1993); State v. Kokal, 562 So. 2d 324 (Fla. 1990).
The delay and/or denial of access to crucial public records in his case results in Mr. Kearse being denied his rights to due process and equal protection of the law. This Court applies the
"abuse of discretion" standard when reviewing appeals from
26 denials of requests for public records. Hill v. State, 921 So.
2d 579 (Fla. 2006).
Discovery into the background, training, and qualifications
of execution team members is necessary to a complete inquiry
into whether a protocol that appears constitutional on its face
violates the Eighth Amendment when it is not carried out as
written. Discovery in other states has revealed some
disquieting facts. In lethal injection litigation in Missouri,
for example, it was learned through discovery that the medical
doctor responsible for mixing and administering the drugs
suffered from dyslexia. The Eighth Circuit upheld Missouri’s
lethal injection procedures after consideration of, inter alia, the State’s promise that the dyslexic doctor would no longer take part in executions. Taylor v. Crawford, 487 F. 3d 1072
(8th Cir. 2007). In the California lethal injection litigation,
a district court judge concluded that the evidence presented
showed that California’s protocol and the defendants’
implementation of it suffered from a number of critical
deficiencies, including inconsistent and unreliable screening of
execution team members:
For example, one former execution team leader, who was responsible for the custody of sodium thiopental (which in smaller doses is a pleasurable and addictive controlled substance), was disciplined for smuggling illegal drugs into San Quentin; another prison guard led the execution team despite the fact that he was
27 diagnosed with and disabled by post-traumatic stress disorder as a result of his experiences in the prison system and he found working on the execution team to be the most stressful responsibility a prison employee ever could have.
Morales v. Tilton, 465 F. Supp. 2d 972, 979 (N.D. Cal. 2006).
Realizing the serious deficiencies in the qualifications of
personnel carrying out executions that were revealed during the
discovery process in other states, on January 3, 2008, Mr.
Kearse filed Demands for Additional Public Records regarding the
promulgation and execution of Florida’s lethal injection
procedures from the Office of the Attorney General, Florida
Department of Corrections, Governor Charlie Crist and Florida
Department of Law Enforcement (PCR. 208-227). On or about
January 24, 2008, the Office of the Attorney General responded
by filing an objection to Mr. Kearse’s Demands on behalf of the
Attorney General and Governor Charlie Crist (PCR2. 256-267). On
or about January 31, 2008, the Department of Corrections filed
its objection (PCR2. 268). Florida Department of Law
Enforcement filed an objection on March 11, 2008 (PCR2. 272).
The circuit court dismissed Mr. Kearse’s demands on June
4 24, 2008, but allowed Mr. Kearse thirty days to file “legally sufficient” demands. The Court reasoned that:
4 Mr. Kearse requested by written motion that the court conduct a hearing to address the public records demands, however the Court
28 First, it is unclear whether Mr. Kearse has made a timely and diligent search of the records repository with respect to public records already produced in the following cases: Ian Deco Lightbourne, Marion County, 81-170; Mark Dean Schwab, Brevard County 91- 9249; Lightbourne v. McCollum, SC06-2391; and Schwab v. State, SC07-1603. Fla. R. Crim. P. 3.852(i)(1)(A). Second, the demands do not establish how each of the records requested is either relevant to a colorable claim for postconviction relief, or reasonably calculated to lead to discovery of admissible evidence in light of records produced or admitted in Lightbourne. Fla. R. Crim. P. 3.852(i)(1)(C).
Order Dismissing Four Demands For Additional Public Records,
etc., June 24, 2008 (PCR2. 348-9). Mr. Kearse filed a second
set of demands on July 24, 2008, puruant to the lower court’s
order (PCR2. 514-615). These demands specifically addressed the
lower court’s findings regarding diligence and relevance. The
circuit court set a combined case management conference and
public records hearing for September 5, 2008.
On September 11, 2008, the court entered its Order Denying
Amended Motion to Vacate Judgments and Sentence and Denying Four
Demands for Additional Public Records (PCR2. 1495). The circuit
court’s order does not substantively address Mr. Kearse’s public
records demands other than to find that the demands relating to
apparently did not receive that motion before ruling on the Demands.
29 the August 2006 and May 2007 procedures are “moot” (Order, p. 2,
PCR2. 1946). In all other respects, the Court addresses the
public records demands as a mere afterthought:
Lastly, in the four additional demands for public records, Kearse requests records related to the preceding postconviction claims. For the reasons stated above, the court finds that the public records sought are not relevant to a proceeding under rule 3.851 and do not appear reasonably calculated to lead to the discovery of admissible evidence. (Fla. R. Crim P. 3.852)(i).
(Order, p. 4, PCR2. 1948).
In effect, the Court determines that Mr. Kearse is not entitled to records disclosure because he is not entitled to postconviction relief. This is putting the cart before the horse. In order to obtain additional public records pursuant to
Fla. R. Crim. P. 3.852, a capital defendant must show that:
(A) collateral counsel has made a timely and diligent search of the records repository;
(B) collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository;
(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and
(D) the additional records request is not overly broad or unduly burdensome.
30 Fla. R. Crim. P. 3.852(i)(2). The merits of Mr. Kearse’s rule
3.851 claims, and whether he is entitled to an evidentiary hearing, are not germane to issues of diligence, specificity or relevance. Mr. Kearse’s entitlement to public records and his entitlement to an evidentiary hearing are two distinct inquiries
— one governed by a standard set out in rule 3.852, the other governed by a standard set out in rule 3.851 — and the former must necessarily be decided before the latter. The clear meaning of Fla. R. Crim. P. 3.852 is that the relevancy requirement is met if Mr. Kearse demonstrates that the records are relevant to the subject matter of a proceeding under rule
3.851. Rule 3.852 does not require Mr. Kearse to prove the merits of his claim, or the entitlement to an evidentiary hearing, to demonstrate that he is entitled to public records disclosure. In fact, the issue of whether Mr. Kearse is entitled to an evidentiary hearing cannot properly be addressed unless and until Mr. Kearse has been afforded public records disclosure in order to investigate and fully develop his
5 argument. Requiring Mr. Kearse to prove the merits of his claim in order to obtain the public records would completely obviate the purpose of rule 3.852.
5 For this reason, Mr. Kearse specifically requested that the circuit court conduct a public records hearing to address his demands before the case management conference.
31 The “Dyehouse Memoranda” are one example of the type of
records Mr. Kearse seeks that are directly relevant to any
lethal injection challenge. During the Lightbourne litigation, the Department of Corrections disclosed internal memoranda that demonstrated that the Department was on notice as early as
August 15, 2006, that the lethal injection procedures should contain a provision for monitoring the consciousness of the inmate after the administration of the first drug, sodium thiopental. Had the Department chosen to incorporate a provision for assessing and monitoring the inmate’s level of consciousness in the August 16, 2006 protocol under which Angel
Diaz was executed, the problems that occurred in that execution may have been avoided. Mr. Kearse needs to know, and is constitutionally entitled to know, what other potential problems the Department of Corrections is aware of in order to determine whether the Department has adequately addressed those issues in its most recent procedures.
Furthermore, Mr. Kearse’s demands made the requisite showing of diligence as required by Rule 3.852(i)(1)(A). In his second demands, Mr. Kearse reiterated that he had made a timely and diligent search of the records repository, by written request, for the requested records as indicated in his previous
3.852(i) demands. Pursuant to the circuit court’s order, on
32 July 9, 2008, counsel for Mr. Kearse again requested, in
writing, that the repository provide copies of all records that
have been produced, by any state agency, in the cases of Mark
Dean Schwab, Brevard County 91-249, Schwab v. State, SC07-1603, and all other cases for which public records regarding lethal injection have been produced (PCR2. 530). The repository responded in writing on July 11, 2008, and provided an “Archives
Integrated Information Management System Container List” detailing the records provided on five CD-ROMs (PCR2. 532-541).
Two of the five CD-ROMs (“CD-87” and “CD-92”) contained materials related to the litigation of lethal injection claims by CCRC-South in State v. Wayne Thompkins and State v. Gregory
Mills. CCRC-South had received copies of these documents in
April, 2001, when those cases were being litigated under active
death warrants. The third CD-ROM (“CD-995”) contained
approximately 29 pages of notes and/or reports of Florida
Department of Law Enforcement personnel acting as independent
observers at “any” lethal injection training sessions. Copies
of these records were provided to CCRC-South in Lightbourne only after briefing in this Court had been completed. These records are limited to training sessions conducted on July 18, 2007
(Mitchell, 9 pages; Davis, 5 pages), and July 11, 2007 (Bryant-
Smith, 7 pages; Westveer, 8 pages). Mr. Kearse did not receive
33 any FDLE records regarding any execution training sessions conducted in the previous year.
The remaining two CD-ROMs (“CD-1073” and “CD-1077”) contained the only records Mr. Kearse received from the repository that were not previously made available to CCRC-
South. “CD-1073” included a copy of an April, 2008 letter from
Department of Corrections Secretary Walter A. McNeil to Governor
Charlie Crist (1 page), with an attached copy of the most recent lethal injection protocols (14 pages). “CD-1077” contained approximately 169 pages of Department of Corrections records regarding “Mock Execution Training Sessions” conducted in
September, 2007, and May, 2008.
Counsel compiled and indexed copies of all public records provided by the repository on July 11, 2008 in response to Mr.
Kearse’s request, in addition to all materials provided by the repository to CCRC-South in all other cases, and filed a copy of the records simultaneously with the demands (PCR2. 626-1675).
In total, the repository had provided approximately 1030 pages of lethal injection-related documents to CCRC-South in response to demands in all CCRC-South cases. Approximately 401 pages of the records are nothing more than published material from outside scholarly or scientific sources. Much of this material
34 is duplicated. The records provided to the repository contain none of the records that Mr. Kearse sought in his demands.
Given the scope and complexity of the controversies regarding lethal injection, Mr. Kearse believes that the public records provided to the repository cannot possibly be complete, and that State agencies are withholding additional public records to which he is entitled. In addition to the records provided by the repository, Mr. Kearse is aware of public records from several State agencies which were provided directly to postconviction counsel during the Lightbourne litigation.
Based on the repository’s responses to Mr. Kearse’s requests, it appears that those records are not currently at the repository, contrary to the requirements of Fla. R. Crim. P. 3.852. Nor have any records been provided to the repository by any agency regarding the execution of Mark Dean Schwab.
In several instances, copies of correspondence between agencies has been provided by either the sending agency or receiving agency, but not both. Nor have any responses to that correspondence been provided. For example, electronic mail and internal memoranda from representatives of the Department of
Corrections to the Governor’s Office have been provided by the
Office of the Governor, but not provided by the DOC. Nor have any responses from the Governor been provided by either agency.
35 Mr. Kearse is also aware that some records (for example,
Department of Corrections internal memoranda indicating that the
Florida Department of Corrections recognized that provisions should be made for either an anesthesiologist or a bispectral index monitor to monitor the inmate’s level of consciousness) were produced to the repository during Lightbourne only to be re-claimed by the agencies that produced them.
In addition, records regarding lethal injection litigation in at least one other CCRC-South case that were sent to the repository have not been provided to Mr. Kearse despite his written requests to the repository. And in yet another CCRC-
South case, the repository responded to counsel’s request for documents by explaining the limitations of their ability to search for, and retrieve, lethal injection records:
We are in receipt of your letter dated July 30, 2008 (copy attached) in which you acknowledge receipt of our July 11, 2008 shipment to your office of records relating to Florida’s lethal injection procedures [in response to Mr. Kearse’s request] and in which you request records “regarding Florida’s lethal injection procedures that were not previously released to our agency on July 11, 2008.”
As indicated in our July 11, 2008 letter accompanying the aforementioned shipment (copy attached), we were able to identify certain Repository records as relating to lethal injection, and we provided your office with copies of all records that we could so identify.
The Repository holds over 2,100 cubic feet of records concerning over 300 capital cases. The
36 records are identified primarily by folder-level information provided by originating agencies, information which is entered into our online catalog. A new search of our online catalog today does not reveal the presence of any additional records responsive to your request. As your letter indicates that you “understand that there are other cases for which public records regarding lethal injection have been produced,” we will be happy to conduct a further search if you can provide us with the additional information you have as to which agencies have submitted such records to the Repository in which cases.
While the repository is efficient in many respects when archiving and producing records regarding a specific case or defendant, it was not designed to archive records specific to particular issues, such as lethal injection. It cannot be said that counsel has not made a diligent search of the repository for lethal injection records when the repository, itself, is not able to find the lethal injection records in their possession.
Clearly collateral counsel has made a timely and diligent search of the records repository and identified the records sought with adequate specificity. The records sought are relevant to Mr. Kearse’s postconviction claims. The circuit court abused its discretion in denying Mr. Kearse’s demands for additional public records.
37 CONCLUSION AND RELIEF SOUGHT
The circuit court erred in denying Mr. Kearse an evidentiary hearing on his Eighth Amendment claim since the motion and the files and records in the case do not conclusively show that Mr. Kearse is entitled to no relief. The lower court abused its discretion in denying Mr. Kearse access to public records. This Court should reverse the circuit court’s order and remand the case for the production of public records and an evidentiary hearing.
Respectfully submitted,
______PAUL KALIL Florida Bar No. 0174114 Assistant CCRC-South 101 N.E. 3rd Avenue Suite 400 Fort Lauderdale, Florida 33301 (954) 713-1284
ATTORNEY FOR APPELLANT
38 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing brief has been furnished by United States Mail, first class postage prepaid, to Leslie T. Campbell, Assistant Attorney General,
Office of the Attorney General, 1515 North Flagler Drive, 9th
Floor, West Palm Beach, Florida 33401, this 5th day of January,
2009.
______PAUL KALIL Assistant CCRC-South
CERTIFICATE OF COMPLIANCE
The undersigned counsel hereby certifies that this brief
complies with the font requirements of rule 9.210(a)(2), Fla. R.
App. P.
______PAUL KALIL Assistant CCRC-South
39