IN THE SUPREME COURT OF FLORIDA

EDDIE WAYNE DAVIS,

Appellant, CASE NO. SC14-1178

L.T. No. 1994-CF-1248A-XX

v.

STATE OF FLORIDA DEATH WARRANT SIGNED

EXECUTION SCHEDULED

Appellee. July 10, 2014, 6:00 p.m.

_________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE TENTH JUDICIAL CIRCUIT,

IN AND FOR POLK COUNTY, FLORIDA

SUPPLEMENTAL ANSWER BRIEF OF THE APPELLEE

PAMELA JO BONDI

ATTORNEY GENERAL

STATE OF FLORIDA

STEPHEN D. AKE

Assistant Attorney General

Florida Bar No. 0014087

TIMOTHY A. FREELAND

Assistant Attorney General

Florida Bar No. 0539181

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

Telephone: 813-287-7910

Facsimile: 813-281-5501

capapp@myfloridalegal.com [and]

stephen.ake@myfloridalegal.com [and]

timothy.freeland@myfloridalegal.com

COUNSEL FOR APPELLEE

i

TABLE OF CONTENTS

TABLE OF CONTENTS.............................................. i

TABLE OF AUTHORITIES.......................................... ii

PRELIMINARY STATEMENT.......................................... 1

STATEMENT REGARDING ORAL ARGUMENT.............................. 1

STATEMENT OF THE CASE AND FACTS................................ 2

SUMMARY OF THE ARGUMENT....................................... 15

ARGUMENT...................................................... 16

ISSUE I.................................................. 16

THE POSTCONVICTION COURT ACTED WITHIN ITS

SOUND DISCRETION IN ALLOWING DR. EVANS TO

TESTIFY............................................. 16

ISSUE II................................................. 21

THE POSTCONVICTION COURT PROPERLY DENIED

DAVIS’ CLAIM THAT HIS ALLEGED MEDICAL

CONDITION WOULD CREATE A RISK THAT FLORIDA’S

LETHAL INJECTION PROCEDURE IS SURE OR VERY

LIKELY TO CAUSE SERIOUS ILLNESS AND NEEDLESS

SUFFERING AND GIVE RISE TO SUFFICIENTLY

IMMINENT DANGERS.................................... 21

CONCLUSION.................................................... 29

CERTIFICATE OF FONT COMPLIANCE................................ 30

CERTIFICATE OF SERVICE........................................ 30

ii

TABLE OF AUTHORITIES

Cases

Baze v. Rees,

553 U.S. 35 (2008) .......................................... 15

Canakaris v. Canakaris,

382 So. 2d 1197 (Fla. 1980) ................................. 17

Chavez v. Palmer,

2014 WL 521067 (M.D. Fla. Feb. 10, 2014) ................ 16, 25

Colusa Remedy Co. v. United States,

176 F.2d 554 (8th Cir. 1949) ................................ 16

Davis v. McNeil,

2009 WL 860628 (M.D. Fla. 2009) .............................. 6

Davis v. McNeil,

559 U.S. 949 (2010) .......................................... 7

Davis v. Sec’y, Dept. of Corr.,

No. 09-11907-P (11th Cir. Sept. 8, 2009) (unpublished) ....... 7

Davis v. State,

698 So. 2d 1182 (Fla. 1997),

cert. denied, 522 U.S. 1127 (1998) ........................... 5

Davis v. State,

875 So. 2d 359 (Fla. 2003) ................................... 6

Henry v. State,

134 So. 2d 938 (Fla. 2014) .............................. passim

Howell v. State,

133 So. 2d 511 (Fla. 2014) ...................... 16, 25, 27, 28

Huff v. State,

569 So. 2d 1247 (Fla. 1990) ................................. 17

Provenzano v. State,

750 So. 2d 597 (Fla. 1999) .................................. 18

Ramirez v. State,

542 So. 2d 352 (Fla. 1989) .................................. 17

Other Authorities

§ 90.702, Fla. Stat. (2013)................................... 18

iii

28 U.S.C. § 2254............................................... 6

Fla. R. Crim. P. 3.850......................................... 5

1

PRELIMINARY STATEMENT

Citations to the record in this brief will be designated as

follows: The record on appeal concerning the original trial

court proceedings shall be referred to as “DAR V_:__” followed

by the appropriate page number. The record on appeal of the

denial of the original 3.850 motion shall be referred to as

“PCR1 V_:__” followed by the appropriate page number and the

record on appeal from the successive postconviction proceedings

will be designated as “PCR2 V_:__.” The two supplemental volumes

following the evidentiary hearing after relinquishment will be

cited as “Supp. PCR2 V_:__” followed by the appropriate page

number.

STATEMENT REGARDING ORAL ARGUMENT

The State respectfully submits that oral argument is not

necessary on the appeal from the summary denial of Davis’

successive motion to vacate. The claims raised in this

successive motion for postconviction relief were summarily

denied as untimely and/or meritless as a matter of established

Florida law. Accordingly, argument will not materially aid the

decisional process.

2

STATEMENT OF THE CASE AND FACTS

Eddie Wayne Davis was indicted on April 7, 1994 for first—

degree murder, burglary with assault or battery, kidnapping a

child under thirteen years of age, and sexual battery on a child

under twelve years of age. He was found guilty as charged, the

jury unanimously recommended a sentence of death and the trial

court sentenced Davis to death. The salient facts from Davis’

trial were set forth by this Court as follows in the direct

appeal opinion:

On the afternoon of March 4, 1994, police found

the body of eleven-year-old Kimberly Waters in a

dumpster not far from her home. She had numerous

bruises on her body, and the area between her vagina

and anus had been lacerated. An autopsy revealed that

the cause of death was strangulation.

On March 5, police questioned Davis, a former

boyfriend of Kimberly’s mother, at the new residence

where he and his girlfriend were moving. Davis denied

having any knowledge of the incident and said that he

had been drinking at a nearby bar on the night of the

murder. Later that same day police again located Davis

at a job site and brought him to the police station

for further questioning, where he repeated his alibi.

Davis also agreed to and did provide a blood sample.

While Davis was being questioned at the station,

police obtained a pair of blood-stained boots from the

trailer Davis and his girlfriend had just vacated.

Subsequent DNA tests revealed that the blood on the

boots was consistent with the victim’s blood and that

Davis’s DNA matched scrapings taken from the victim’s

fingernails. A warrant was issued for Davis’s arrest.

On March 18, Davis agreed to go to the police

station for more questioning. He was not told about

3

the arrest warrant. At the station, he denied any

involvement and repeated the alibi he had given

earlier. After about fifteen minutes, police advised

Davis of the DNA test results. Davis insisted they had

the wrong person and asked if he was being arrested.

Police told him that he was. At that point Davis

requested to contact his mother so she could obtain an

attorney for him, and the interview ceased. Davis was

placed in a holding cell.

A few minutes later, while Davis was in the

holding cell, Major Grady Judd approached him and,

making eye contact, said that he was disappointed in

Davis. When Davis responded inaudibly, Judd asked him

to repeat what he had said. Davis made a comment

suggesting that the victim’s mother, Beverly Schultz,

was involved. Judd explained that he could not discuss

the case with Davis unless he reinitiated contact

because Davis had requested an attorney. Davis said he

wanted to talk, and he did so, confessing to the

crimes against Kimberly and implicating Beverly

Schultz as having solicited the crimes. Within a half

hour after this interview, police conducted a taped

interview in which Davis gave statements similar in

substance to the untaped confession. Davis’s full

Miranda [FN1] warnings were not read to him until the

taped confession began.

In May, 1994, Davis wrote a note asking to speak

to detectives about the case. In response, police

conducted a second taped interview on May 26, 1994.

Police asked Davis if he was willing to proceed

without the advice of his counsel, to which Davis

responded yes, but specific Miranda warnings were not

recited to Davis. During this interview, Davis again

confessed to killing Kimberly but stated that Beverly

Schultz was not involved. Davis explained that he

originally went to Schultz’s house to look for money

to buy more beer. Because Schultz normally did not

work on Thursday nights and because her car was gone,

Davis believed that no one was home. Indeed, Schultz

was not home at the time because she had agreed to

work a double shift at the nursing rehabilitation

center where she was employed. However, her daughters,

Crystal and Kimberly, were at the house sleeping. When

4

Davis turned on the lights in Beverly Schultz’s

bedroom, he saw Kimberly, who was sleeping in

Schultz’s bed. Kimberly woke up and saw him. He put

his hand over her mouth and told her not to holler,

telling her that he wanted to talk to her. Kimberly

went with him into the living room. Davis put a rag in

her mouth so she could not yell.

Davis related that they went outside and jumped a

fence into the adjacent trailer park where Davis’s old

trailer was located. Davis said that while they were

in the trailer, he tried to put his penis inside of

Kimberly. When he did not succeed, he resorted to

pushing two of his fingers into Kimberly’s vagina.

Afterwards, Davis took Kimberly to the nearby Moose

Lodge. He struck her several times, then placed a

piece of plastic over her mouth. She struggled and

ripped the plastic with her fingers but Davis held it

over her mouth and nose until she stopped moving. He

put her in a dumpster and left.

Davis moved to suppress the March 18 and May 26

statements he made to law enforcement officers,

arguing that his Miranda rights were violated. The

trial court denied those motions. The jury found Davis

guilty of first-degree murder, burglary with assault

or battery, kidnapping a child under thirteen years of

age, and sexual battery on a child under twelve years

of age. The jury unanimously recommended a sentence of

death and the trial court sentenced Davis to death.

In aggravation, the trial court found that the

murder was: (1) committed by a person under sentence

of imprisonment; (2) committed during the commission

of a kidnapping and sexual battery; (3) committed for

the purpose of avoiding or preventing a lawful arrest;

and (4) especially heinous, atrocious, or cruel. As

statutory mitigation, the court found that the murder

was committed while the defendant was under the

influence of extreme mental or emotional disturbance

and gave this factor great weight.

As nonstatutory mitigation, the court found that

Davis was capable of accepting responsibility for his

actions and had shown remorse for his conduct and

5

offered to plead guilty; that he had exhibited good

behavior while in jail and prison; that he had

demonstrated positive courtroom behavior; that he was

capable of forming positive relationships with family

members and others; that he had no history of violence

in any of his past criminal activity; that he did not

plan to kill or sexually assault the victim when he

began his criminal conduct; that he cooperated with

police, confessed his involvement in the crime, did

not resist arrest, and did not try to flee or escape;

that he had always confessed to crimes for which he

had been arrested in the past, accepted

responsibility, and pled guilty; that he had suffered

from the effects of being placed in institutional

settings at an early age and spending a significant

portion of his life in such settings; and that Davis

obtained his GED while in prison and participated in

other self-improvement programs. Although the trial

court gave “medium weight” to several of these

nonstatutory mitigators, most of them were assigned

little weight.

Davis v. State, 698 So. 2d 1182, 1185-87 (Fla. 1997) (footnote

omitted), cert. denied, 522 U.S. 1127 (1998).

Davis’ initial Motion to Vacate Judgment of Convictions and

Sentences with Special Request for Leave to Amend was filed

pursuant to Florida Rule of Criminal Procedure 3.850 on May 28,

1998, and an amended motion was filed on June 23, 2000. (PCR1

V2-3:180-204, 282-410). Davis raised a number of claims,

including a claim that his trial counsel was ineffective for

failing to present expert mental health testimony at the penalty

phase. At the postconviction evidentiary hearing in 2001,

collateral counsel presented testimony from Dr. Michael Maher

regarding his neurological examination of Davis in 2000. (PCR1

6

V4:557). Relevant to the current issue in this appeal, Dr. Maher

testified that porphyria is a metabolic disease related to the

way the body chemically processes blood and blood products.

(PCR1 V4:558-59). Dr. Maher testified that the symptoms of

porphyria could include “mental confusion, disorientation, poor

judgment, irritability, impulsiveness. Poor coordination is

another thing that can occur, and under severe circumstances,

coma can occur.” (PCR1 V4:559). Dr. Maher testified that there

are specific metabolic tests to determine whether someone has

porphyria, but Dr. Maher did not perform any of these tests on

Davis and thus, did not diagnosis Davis with porphyria. (PCR1

V4:559, 573).

Following the evidentiary hearing, the postconviction court

issued an order denying relief. (PCR1 V5:687-713). This Court

affirmed the lower court’s denial of postconviction relief and

also denied Davis’ petition for writ of habeas corpus. Davis v.

State, 875 So. 2d 359 (Fla. 2003).

Davis filed his petition for habeas corpus pursuant to 28

U.S.C. § 2254 in the United States District Court, Middle

District, Tampa Division on November 23, 2004. On March 30,

2009, the United States District Court denied Davis habeas

corpus relief on all grounds. Davis v. McNeil, 2009 WL 860628

(M.D. Fla. 2009) (unpublished). On April 13, 2009, the Eleventh

7

Circuit Court of Appeals denied a certificate of appealability.

Davis v. Sec’y, Dept. of Corr., No. 09-11907-P (11th Cir. Sept.

8, 2009) (unpublished). Davis’ petition for writ of certiorari

to the United States Supreme Court was denied on February 22,

2010. Davis v. McNeil, 559 U.S. 949 (2010).

On June 2, 2014, Governor Rick Scott signed Davis’ death

warrant and his execution is scheduled for July 10, 2014 at 6:00

p.m. Davis filed a successive motion for postconviction relief

on June 9, 2014, raising the following three claims:

Claim I: Mr. Davis is entitled to a stay of execution

due to the recent “botched” execution in Oklahoma and

the decision by the United States Supreme Court to

stay the execution of a condemned inmate in the state

of Missouri. The failure to grant a stay could violate

Mr. Davis’ 8th Amendment Constitutional rights under

the United States Constitution and corresponding

rights under the Florida Constitution.

Claim II: Newly discovered evidence indicates that an

execution of Mr. Davis violates his rights under the

8th Amendment of the United States Constitution and

the corresponding provisions of the Florida

Constitution.

Claim III: Mr. Davis did not receive a proper clemency

review process.

(PCR2 V2:307-47). The next day, Davis filed a motion seeking a

stay of execution and an independent medical examination

permitting the testing of Davis’ blood at a laboratory certified

to conduct testing to determine if Davis had porphyria. (PCR2

V2:348-51). Following the State’s response to his successive

8

motion, Davis filed another motion asserting further grounds in

support of his motion for a medical examination and sought an

order compelling the Department of Corrections to obtain blood,

urine, and stool samples from Davis. (PCR2 V3:406-13). After

conducting a case management conference, the court issued orders

denying Davis’ successive postconviction motion and motion for

independent medical examination. (PCR2 V3:474-78).

After filing his Initial Brief with this Court, Davis filed

a Motion to Stay his execution and attached an affidavit from

Dr. Joel Zivot alleging that he suffers from the medical

condition porphyria and the use of midazolam would result in

extreme and excruciating pain. On June 26, 2014, this Court

issued an order temporarily relinquishing jurisdiction to the

circuit court in order to conduct a hearing on Davis’ claim.

On June 30, 2014, the court conducted a hearing where Davis

and Dr. Joel Zivot1 testified for the defense, and the State

presented testimony from Dr. Roswell Lee Evans, a doctor of

pharmacy and Dean of the Harrison School of Pharmacy at Auburn

University. Davis testified that he currently has a rash which

he described as “eating the flesh away” and which he claimed to

1 Dr. Zivot is a board certified anesthesiologist and Medical

Director at the Cardiothoracic Intensive Care Unit at Emory

University Hospital. (Supp. PCR2 V1:64-65).

9

have experienced one time before, several months ago. (Supp.

PCR2 V1:55-56). He experiences mouth blisters, “burning pain” in

his legs and feet, and numbness in his left leg that has been

there for the past year; he also sometimes feels either hot or

cold sensations in his feet. (Supp. PCR2 V1:57). He was given

dandruff shampoo for the rash but it was ineffective. (Supp.

PCR2 V1:58). On cross examination, Davis conceded that he has

never been diagnosed with porphyria. (Supp. PCR2 V1:59). He has

a history of arthritis and has been given Valtrex for the mouth

blisters, and this was effective. (Supp. PCR2 V1:60).

Dr. Zivot testified that porphyria is a condition involving

the abnormal regulation of heme, which is an important substance

used by the body to create hemoglobin and other compounds. It is

made in the bone marrow and liver. (Supp. PCR2 V1:68). Porphyria

is known to cause skin rashes, neuropathy, allodynia, seizures,

nausea and vomiting. (Supp. PCR2 V1:69-71). There are several

different types of porphyria. Cutaneous porphyria has visible

symptoms. Acute porphyria occurs when there is an “initiating

event” and the effect is immediate. (Supp. PCR2 V1:71-72).

Dr. Zivot testified that midazolam is a sedating

benzodiazepine. It has no analgesic or pain relieving ability

(Supp. PCR2 V1:74-75). According to Dr. Zivot, the use of

midazolam would result in an accumulation of porphyrin. (Supp.

10

PCR2 V1:77). Dr. Zivot opined that a large dose of midazolam

will lead to a porphyria crisis quicker than would a smaller

dose. (Supp. PCR2 V1:79). Symptoms would include abdominal pain,

tachycardia, high blood pressure, nausea and vomiting. Dr. Zivot

also opined that use of midazolam in the planned dosage of 500

milligrams will cause Davis to experience pain, nausea, and

vomiting. (Supp. PCR2 V1:84).

On cross examination, Dr. Zivot conceded that he has been a

vocal opponent of the use of lethal injection as a means of

capital punishment and that he has written and published two

articles advocating his views. (Supp. PCR2 V1:85-86). Dr. Zivot

acknowledged that midazolam is frequently and commonly used for

anesthesia. (Supp. PCR2 V1:91). There are many different types

of porphyria, depending upon how it is classified. (Supp. PCR2

V1:99-100). In developing his opinion, Dr. Zivot relied upon an

article in which chicken embryo liver cells were examined to

assess the effects of certain classes of medications on

porphyrin production. (Supp. PCR2 V1:103-04). He agreed that the

article identified midazolam as “generally safe” (Supp. PCR2

V1:105), but stated that this conclusion was not based on

clinical studies. Dr. Zivot agreed that he had not read the

studies cited in the article. (Supp. PCR2 V1:106-07). There are

studies that find midazolam to be safe for patients with

11

porphyria. (Supp. PCR2 V1:108). Dr. Zivot agreed that no studies

exist showing that an outbreak of porphyria would occur within

minutes of administering a 500 milligram dose of midazolam.

(Supp. PCR2 V1:111). He agreed that the Porphyria Foundation

lists midazolam as safe for people with acute porphyria. (Supp.

PCR2 V1:112). Dr. Zivot agreed that porphyrins need to

accumulate in order to result in an attack, and that it takes

some time for that accumulation to occur. (Supp. PCR2 V1:114).

On redirect, Dr. Zivot explained that he does not like

lethal injection because midazolam is “medicine to heal.” He is

unable to verify that use of midazolam for the purpose of

capital punishment is “safe.” (Supp. PCR2 V1:117).

During court questioning, Dr. Zivot stated that

unconsciousness would occur within minutes after administration

of a 50 milligram dose of midazolam. He was not certain that a

larger dosage would cause unconsciousness more quickly. (Supp.

PCR2 V1:120-21).

Dr. Roswell Evans testified that he is a Doctor of

Pharmacology, and is Dean of Auburn University’s Harrison School

of Pharmacy. Dr. Evans is board certified as a Psychiatric

Pharmacist and has previously taught classes in pharmacy to both

medical doctors as well as nursing students. (Supp. PCR2 V1:128-

30). He testified that a 500 milligram dose of midazolam would

12

have a profound effect, as he considers that dosage to be

lethal. An individual given that quantity of midazolam would be

unconscious before he could count to ten and back. (Supp. PCR2

V1:136). An individual of Davis’ weight would require 10

milligrams of midazolam to render him unconscious. (Supp. PCR2

V1:138). Dr. Evans opined that Davis would not feel pain within

a few minutes after being given a 500 milligram dose of

midazolam. (Supp. PCR2 V1:139-41). Even though an individual may

suffer from porphyria, midazolam would still render that person

unconscious. (Supp. PCR2 V1:142). Assuming Davis has porphyria,

this condition would not interfere with midazolam’s efficacy in

rendering him insensate to pain within a few minutes. (Supp.

PCR2 V1:143). Dr. Evans testified that he was unable to find any

studies showing that a porphyric attack would occur during the

few minutes between administration of midazolam and the onset of

unconsciousness. He opined that it was “highly unlikely” that

Davis would suffer extreme or excruciating pain as a result of a

porphyric attack. (Supp. PCR2 V1:144).

Dr. Evans further testified that the literature indicates

that midazolam is a preferred choice of drug for persons

suffering from porphyria. (Supp. PCR2 V1:145). On cross

examination, Dr. Evans explained that he relied in part on a

textbook identified by him as Harrison’s Internal Medicine,

13

which does not include midazolam as an unsafe drug for persons

suffering from porphyria. (Supp. PCR2 V1:148-49). The British

Journal of Anesthesiology lists midazolam as a better choice for

patients with porphyria. (Supp. PCR2 V1:149). Dr. Evans further

testified that a porphyric attack is unlikely to occur within

minutes; it is more likely to take hours or days. (Supp. PCR2

V1:150).

In response to questions asked by the court, Dr. Evans

explained that an individual given five milligrams of midazolam

would be rendered unconscious before they could count to ten and

back. An individual given 500 milligrams of midazolam would be

in a coma within five to ten minutes. He would be unable to feel

pain or other noxious stimuli after three to five minutes.

(Supp. PCR2 V1:160-61).

On rebuttal, Dr. Zivot disagreed that a person of Davis’

weight would be rendered unconscious with 10 milligrams of

midazolam. (Supp. PCR2 V1:162-63). He stated that there is no

evidence that midazolam is safe. (Supp. PCR2 V1:163). Midazolam

is not an analgesic at any dose. (Supp. PCR2 V1:164). Dr. Zivot

testified that he believed there should be no pain at all during

an execution and that there is “not a shred” of evidence that

midazolam is safe in the way it is to be used to execute Davis.

(Supp. PCR2 V1:165-66). The assumption is that it is not safe.

14

(Supp. PCR2 V1:166). Evidence indicating that midazolam is safe

for people suffering from porphyria is anecdotal and involves

use of low dosages. (Supp. PCR2 V1:174). Dr. Zivot explained

that a person suffering from a porphyric attack would have his

condition worsened by use of midazolam; more midazolam means

more porphyria. (Supp. PCR2 V2:176). In response to court

questioning, Dr. Zivot agreed that a person administered a dose

of 50 milligrams would be unconscious within a matter of a few

minutes. (Supp. PCR2 V2:177).

On July 1, 2014, the postconviction court issued an order

denying Davis’ as-applied challenge to Florida’s lethal

injection procedures. The court found, in pertinent part:

In this case, the Defendant has not met his heavy

burden to establish that he is “sure or very likely”

to experience serious illness or needless suffering.

The very purpose of the initial injection of midazolam

is to render the Defendant unconscious before further

proceeding with the execution. There is a chance that

the Defendant may suffer an acute onset of porphyria

by an accumulation of porphyrin in his tissues which

could lead to the onset of pain but, based on the

evidence presented, it is the Court’s conclusion that

the effects of midazolam will have rendered the

Defendant unconscious and probably comatose by the

time there is any risk of pain. The Defendant will be

both unconscious and insensate before he would

experience any possible onset of pain or a porphyria

attack.

(Supp. PCR2 V2:314). This appeal follows.

15

SUMMARY OF THE ARGUMENT

The lower court acted within its sound discretion in

allowing the State’s expert pharmacologist, Dr. Evans, to

testify regarding the effects of midazolam. A pharmacologist

like Dr. Evans, by definition, is a person who studies the

actions of drugs and their effects on living tissue. The witness

was an expert given his knowledge, skill, experience, training,

and education, and his opinions could certainly assist the trier

of fact in understanding the relevant issues in dispute.

The postconviction court properly concluded that Davis

failed to carry his heavy burden under Baze v. Rees, 553 U.S. 35

(2008), of showing that because of his alleged medical

condition, Florida’s lethal injection protocol is “sure or very

likely to cause serious illness and needless suffering” and give

rise to “sufficiently imminent dangers.” As the testimony at the

evidentiary hearing demonstrated, even assuming Davis has some

form of porphyria, Florida’s administration of a 500 milligram

dose of midazolam will have rendered him unconscious and

insensate before he would experience any possible onset of pain.

Accordingly, this Court should affirm the lower court’s denial

of Davis’ as-applied constitutional challenge to Florida’s

lethal injection procedure.

16

ARGUMENT

ISSUE I

THE POSTCONVICTION COURT ACTED WITHIN ITS SOUND

DISCRETION IN ALLOWING DR. EVANS TO TESTIFY.

In his first issue, Davis complains that the lower court

erred in allowing Dr. Roswell Evans, a board-certified

pharmacologist and Dean of the Harrison School of Pharmacy at

Auburn University, to testify outside of his area of expertise.2

Dr. Evans testified at the hearing regarding his qualifications

and informed the court that he is involved with examining and

researching of the impact of various drugs on individuals and

has both a consulting and a clinical practice. (Supp. PCR2

V1:128-30). Dr. Evans is a board certified psychiatric

neurologic pharmacist and has been qualified and testified as an

expert dealing with the effects of drugs on individuals many

times, including in Florida regarding the effects of midazolam.3

2 By definition, a pharmacologist is “one who makes a study of

the actions of drugs.” The Sloane-Dorland Annotated Medical-

Legal Dictionary (1987 ed.). Pharmacology is “the study of drugs

as to their chemistry, source, physical properties, preparation

and physiological effects on living tissue, whether they be used

in therapeutic amounts or otherwise, their absorption, their

fats, their excretion and therapeutic indications for their

use.” Colusa Remedy Co. v. United States, 176 F.2d 554, 558 (8th

Cir. 1949).

3 See generally Henry v. State, 134 So. 2d 938 (Fla. 2014);

Howell v. State, 133 So. 2d 511 (Fla. 2014); Chavez v. Palmer,

2014 WL 521067 (M.D. Fla. Feb. 10, 2014).

17

(Supp. PCR2 V1:133-34). Davis’ counsel conducted voir dire

regarding the expert’s qualifications and elicited testimony

that Dr. Evans is not a medical doctor or anesthesiologist, has

never directly administered midazolam, and does not specialize

in the treatment of patients who have porphyria. (Supp PCR2

V1:130-32). Thereafter, Davis’ counsel objected to Dr. Evans

testifying at the hearing. The court overruled the objection.

(Supp PCR2 V1:135).

The State submits that the postconviction court acted

within its sound discretion in allowing Dr. Evans to testify.

This Court has previously stated that “[t]he determination of a

witness’s qualifications to express an expert opinion is

peculiarly within the discretion of the trial judge, whose

decision will not be reversed absent a clear showing of error.”

Ramirez v. State, 542 So. 2d 352, 355 (Fla. 1989). The abuse of

discretion standard is satisfied when “the judicial action is

arbitrary, fanciful, or unreasonable, which is another way of

saying that discretion is abused only where no reasonable man

would take the view adopted by the trial court.” Huff v. State,

569 So. 2d 1247, 1249 (Fla. 1990) (quoting Canakaris v.

Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)). Furthermore, as

this Court has noted, “the circuit court below, as factfinder,

can determine the appropriate weight to be given to [the

18

expert’s] testimony. Provenzano v. State, 750 So. 2d 597, 602

(Fla. 1999) (citing Charles W. Ehrhardt, Florida Evidence §

702.1, at 555 (1999 ed.)).

Florida Statutes, section 90.702 was amended in 2013, and

now states:

If scientific, technical, or other specialized

knowledge will assist the trier of fact in

understanding the evidence or in determining a fact in

issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education may testify

about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient

facts or data;

(2) The testimony is the product of reliable

principles and methods; and

(3) The witness has applied the principles and

methods reliably to the facts of the case.

§ 90.702, Fla. Stat. (2013). Obviously, Dr. Evans’ specialized

knowledge, skill, experience, training, and education allowed

him to testify regarding the effects of midazolam. As noted, a

pharmacologist, by definition, is educated and trained to

understand the effects of drugs on an individual. The fact that

Dr. Evans has not personally and directly administered midazolam

or anesthesia to an individual is irrelevant as it is highly

unlikely that the witness has administered any drugs directly to

a patient as his specialty is “examining and researching the

impact of various drugs on individuals” and “to recommend and

initiate appropriate drug therapy in collaboration” with others.

19

(Supp. PCR2 V1:129). Additionally, although Dr. Evans may not

have any direct experience with patients who allegedly have

porphyria because it is such a rare disease, it was within his

area of expertise to testify as to the effect of drugs on an

individual and to make determinations based on resources,

literature, etc. used by experts in his field. Further, while

Appellant faults Dr. Evans for not relying on case studies in

support of his opinion, defense expert Dr. Zivot testified that

that a case study that would mimic an execution could never be

done and there could never be a study where 500 milligrams of

midazolam is given to a patient who has porphyria. (Supp. PCR2

V1:111).

Because Dr. Evans’ specialized knowledge would assist the

trier of fact in understanding the relevant issues, the

postconviction court acted within its sound discretion in

allowing him to testify. Even assuming that Davis could

establish that the lower court abused its discretion in allowing

Dr. Evans’ testimony, any error would be harmless because, as

will be discussed in more detail in Issue II, the other evidence

admitted at the hearing from Appellant and Dr. Zivot was

insufficient to establish Davis’ burden of proof for his Eighth

Amendment as-applied challenge to Florida’s lethal injection

procedures. This Court could disregard Dr. Evans’ testimony in

20

its entirety and Davis would still not be able to succeed on his

underlying claim. Accordingly, because the postconviction court

acted in its sound discretion in allowing Dr. Evans to testify,

this Court should reject Davis’ claim.

21

ISSUE II

THE POSTCONVICTION COURT PROPERLY DENIED DAVIS’ CLAIM

THAT HIS ALLEGED MEDICAL CONDITION WOULD CREATE A RISK

THAT FLORIDA’S LETHAL INJECTION PROCEDURE IS SURE OR

VERY LIKELY TO CAUSE SERIOUS ILLNESS AND NEEDLESS

SUFFERING AND GIVE RISE TO SUFFICIENTLY IMMINENT

DANGERS.

This Court relinquished jurisdiction in order for the

circuit court to conduct a hearing to determine “whether Davis’

alleged porphyria creates a risk that is sure or very likely to

cause serious illness and needless suffering and give rise to

sufficiently imminent dangers.” The postconviction court

conducted an evidentiary hearing on Appellant’s claim where

Davis and his expert, Dr. Joel Zivot, testified. The State

presented rebuttal testimony from Dr. Roswell Evans. After

hearing this testimony, the postconviction court denied Davis’

claim and found that Davis failed to carry his burden of proof

of establishing that he was sure or very likely to experience

serious illness or needless suffering as he would be rendered

unconscious and insensate before any possible onset of pain as

the result of a porphyria attack.

In Henry v. State, 134 So. 2d 938 (Fla. 2014), this Court

was recently presented with a similar situation involving a

death row inmate’s as-applied constitutional challenge to

Florida’s lethal injection procedures. This Court stated that

22

when reviewing a trial court’s ruling denying such a claim, this

Court uses a two-step standard of review, “deferring to the

trial court on questions of historical fact but conducting a de

novo review of the constitutional issue.” Id. at 946 (quoting

Connor v. State, 803 So. 2d 598, 605 (Fla. 2001)). The State

submits that the application of such review establishes that the

postconviction court properly denied Davis’ claim.

Contrary to Appellant’s flagrant misrepresentation to this

Court, it has never been established that “Eddie Wayne Davis

suffers from porphyria.” Supplemental Initial Brief at 11. In

fact, quite the opposite. The evidence establishes that Davis

has never been diagnosed with porphyria. Davis himself admitted

that he has never been diagnosed with this condition. (Supp.

PCR2 V1:59). Rather, Davis testified that he is currently

experiencing a “giant rash” like “something’s eating the flesh

away.” According to Davis this rash has only happened one time

before several months ago. (Supp. PCR2 V1:55-56). The State,

however, introduced Department of Corrections’ medical records

from Davis indicating that he was examined for a rash on his

left side and middle back on December 1, 1999. (Supp. PCR2

V2:288). On April 12, 2001, Davis complained he was “breaking

out again” and wanted to “get back on the Valtrex” to treat his

“hx (history) of herpes to flank area.” (Supp. PCR2 V2:289).

23

Although the postconviction court assumed for the sake of

the instant proceedings that Davis has porphyria,4 the State

submits that Davis cannot succeed on his Eighth Amendment as-

applied challenge absent proof that he actually has porphyria.

Davis has known of this possible diagnosis since at least 2000,

see Dr. Maher’s testimony at Davis’ original postconviction

proceeding (PCR1 V4:557-59, 573), and has never sought to

establish this condition until the eve of his execution.

Accordingly, given his undue delay, this Court should not

presume that Davis has such a condition.

Even assuming, however, that Davis does have some form of

porphyria, the evidence presented below does not establish that

Florida’s use of midazolam will surely or very likely cause

Davis to suffer serious illness or needless suffering or give

rise to sufficiently imminent dangers. As this Court stated in

4 In this Court’s order of June 26, 2014, relinquishing

jurisdiction, this Court noted that its decision was based on

Dr. Zivot’s affidavit that Davis allegedly suffers from

porphyria. At the hearing, the State attempted to question Dr.

Zivot on his claim that Davis “reportedly” has porphyria, but

the postconviction court prevented the State from fully

questioning the witness on his basis for this opinion, and

simply assumed for the purposes of the hearing that Davis has

such a condition. (Supp. PCR2 V1:93-99). Dr. Zivot, however,

briefly testified that he was basing his opinion on Dr. Maher’s

examination, but as has been previously noted, Dr. Maher has

never diagnosed Davis as suffering from porphyria. (PCR1 V4:557-

59, 573).

24

Henry, in order for a defendant to successfully raise an Eighth

Amendment challenge to Florida’s lethal injection procedures:

[A] defendant must show that the state’s lethal

injection protocol is “‘sure or very likely to cause

serious illness and needless suffering.’” Brewer v.

Landrigan, ___ U.S. ____, 131 S. Ct. 445, 445, 178 L.

Ed. 2d 346 (2010) (quoting Baze v. Rees, 553 U.S. 35,

50, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008)

(plurality opinion)). “In other words, there must be a

substantial risk of serious harm, an objectively

intolerable risk of harm that prevents prison

officials from pleading that they were subjectively

blameless for purposes of the Eighth Amendment.”

Howell, 133 So. 3d at 517 (internal quotation marks

omitted). “This heavy burden is borne by the defendant

— not the State.” Id.

Henry, 134 So. 3d at 947. Applying this standard, the

postconviction court properly found that Davis failed to carry

his heavy burden under Baze of proving that there is a

substantial risk of serious harm or needless suffering to him

based on his alleged porphyria.

The testimony at the evidentiary hearing established that

Florida’s massive 500 milligram dose of midazolam will render an

inmate unconscious and insensate within the matter of a few

minutes. Even Davis’ own expert, Dr. Zivot, acknowledged that a

much smaller dose of 50 milligrams would quickly render Davis

unconscious. (Supp PCR2 V1:120-21). Dr. Evans likewise opined

that Davis would not feel pain within a few minutes after being

given a 500 milligram dose of midazolam as he would be

25

unconscious and insensate. (Supp PCR2 V1:139-41). The State

submits that it is now well established in Florida that a 500

milligram dose of midazolam will render someone unconscious

within the matter of a minute or two. See also Howell v. State,

133 So. 3d 511, 519 (Fla. 2014) (noting that defense expert Dr.

Lubarsky stated that midazolam will induce unconsciousness

within 1-2 minutes); Henry v. State, 134 So. 3d 938, 947-48

(Fla. 2014) (stating that Drs. Dershwitz and Evans testified

that when midazolam is given intravenously the heart pumps the

blood to the brain and consciousness will be lost within a

minute or two and the defendant will not be conscious to

experience any pain); Chavez v. Palmer, 2014 WL 521067 (M.D.

Fla. Feb. 10, 2014) (finding that the experts’ testimony

established that “when midazolam is properly administered in the

massive dose required by the Florida protocol, it will render

the individual insensate to noxious stimuli by placing the

individual in an anesthetic state, unable to discern pain”).

In rejecting Davis’ as-applied challenge, the

postconviction court relied on this testimony regarding the

efficacy of midazolam in quickly rendering an inmate unconscious

and found that “[t]here is a chance that the Defendant may

suffer an acute onset of porphyria by an accumulation of

porphyrin in his tissues which could lead to the onset of pain

26

but, based on the evidence presented, it is the Court’s

conclusion that the effects of midazolam will have rendered the

Defendant unconscious and probably comatose by the time there is

any risk of pain. The Defendant will be both unconscious and

insensate before he would experience any possible onset of pain

or a porphyria attack.” (Supp. PCR2 V2:314). The court’s

conclusion is supported by the evidence. While defense expert

Dr. Zivot opined that a person with porphyria would have an

accumulation of porphyrins when administered midazolam and could

suffer an acute porphyria attack,5 he could not place any time

frame on when the onset of such a porphyrin accumulation would

occur, nor could he testify as to when a possible porphyria

attack would occur. (Supp PCR2 V1:114). Dr. Zivot certainly did

not opine that such an accumulation of porphyrins would occur

almost instantly upon the administration of midazolam and result

in an adverse reaction prior to the onset of unconsciousness.

Similarly, contrary to Appellant’s assertions in his brief, Dr.

Zivot never testified that Davis was sure or likely to suffocate

on his own vomit during the execution.

5 Dr. Zivot’s opinion regarding the accumulation of porphyrins

after being administered midazolam was based on a study he read

involving chicken embryo liver cells that measured the

accumulation of porphyrins after 20 hours. (Supp PCR2 V1:103-06,

109).

27

The State’s expert pharmacologist, Dr. Evans, opined that,

even though an individual may suffer from porphyria, the disease

would not have any effect on the ability of midazolam to render

that person unconscious.6 (Supp PCR2 V1:142). Dr. Evans testified

that, even if Davis has porphyria, his condition would not

interfere with the efficacy of Florida’s 500 milligram dose of

midazolam in rendering Davis unconscious and insensate to pain

within the matter of only a few minutes. (Supp PCR2 V1:141-43).

He further opined that it was “highly unlikely” that Davis would

suffer extreme or excruciating pain as a result of a porphyric

attack. (Supp PCR2 V1:144).

Clearly, based on this testimony, the postconviction court

properly concluded that Davis failed to carry his burden of

showing that it was “sure or very likely” that Florida’s use of

midazolam would cause serious illness or needless suffering or

give rise to sufficiently imminent dangers. As this Court noted

in Howell v. State, 133 So. 3d 511 (Fla. 2014), “[i]n the lethal

injection context, ‘the condemned inmate’s lack of consciousness

6 Dr. Evans noted that the pharmaceutical literature indicates

that midazolam is a safe drug to use on persons suffering from

porphyria, and in fact, is a preferred choice of pre-anesthetic

type drugs in comparison to others. (Supp PCR2 V1:145). Defense

expert Dr. Zivot even reluctantly acknowledged that midazolam

would be better to use clinically on a patient with porphyria

than barbiturates like sodium thiopental and pentobarbital.

(Supp PCR2 V1:108-09).

28

is the focus of the constitutional inquiry.’” Id. at 517

(quoting Valle v. State, 70 So. 3d 530, 539-40 (Fla. 2011)).

Here, even assuming Davis has porphyria, the evidence

established that he would be unconscious and insensate before

any possible onset of pain from a porphyria attack. As Davis

failed to carry his burden under Baze, this Court should affirm

the lower court’s order denying Davis’ as-applied Eighth

Amendment challenge to Florida’s lethal injection procedures.

29

CONCLUSION

Based on the foregoing arguments and authorities, Appellee,

State of Florida, respectfully urges this Court to affirm the

order of the lower court denying Davis’ as-applied

constitutional challenge to Florida’s lethal injection

procedures.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

STATE OF FLORIDA

/s/ Stephen D. Ake_____________

STEPHEN D. AKE

Assistant Attorney General

Florida Bar No. 0014087

TIMOTHY A. FREELAND

Assistant Attorney General

Florida Bar No. 0539181

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

Telephone: 813-287-7910

Facsimile: 813-281-5501

capapp@myfloridalegal.com [and]

stephen.ake@myfloridalegal.com [and]

timothy.freeland@myfloridalegal.com

COUNSEL FOR APPELLEE

30

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 3rd day of July, 2014, a true

and correct copy of the foregoing has been furnished

electronically to the Clerk of the Florida Supreme Court at

warrant@flcourts.org; and to Richard E. Kiley and Ali A.

Shakoor, Assistants CCRC-M, Office of Capital Collateral

Regional Counsel, Middle Region, 3801 Corporex Park Drive, Suite

210, Tampa, Florida 33619-1136, [kiley@ccmr.state.fl.us],

[shakoor@ccmr.state.fl.us], [felician@ccmr.state.fl.us] and

[support@ccmr.state.fl.us]; and John Aguero, Assistant State

Attorney, Polk County State Attorney’s Office, Post Office Box

9000, Drawer SA, Bartow, Florida 33831, [jaguero@sao10.com] and

[cdaniels@sao10.com].

/s/ Stephen D. Ake____________

COUNSEL FOR APPELLEE