Florida Supreme Court opinion in Danny Rolling

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Supreme Court of Florida
____________
No. SC06-1966
____________
DANNY HAROLD ROLLING,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.

[October 18, 2006]

PER CURIAM.
Danny Harold Rolling, a prisoner under sentence of death and an active
death warrant, appeals the circuit court’s order denying without an evidentiary
hearing his successive motion for postconviction relief. We have jurisdiction. See
art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the circuit
court’s order.

FACTS AND PROCEDURAL HISTORY

The execution of Danny Harold Rolling is set for October 25, 2006. The
factual background and procedural history of this case are detailed in this Court’s
opinion on Rolling’s direct appeal. See Rolling v. State, 695 So. 2d 278, 281-83
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(Fla. 1997). After initially pleading not guilty, on February 15, 1994, the day
Rolling’s trial was scheduled to begin, he pled guilty to five counts of first-degree
murder, three counts of sexual battery, and three counts of armed burglary of a
dwelling with a battery. Id. at 282. “A penalty phase proceeding was held, and the
jury recommended that Rolling be sentenced to death for each murder by a vote of
twelve to zero. The trial court followed the jury’s advisory recommendation and
sentenced Rolling to death for each homicide . . . .” Id.

This Court affirmed
Rolling’s sentences of death,1 id. at 278, and the United States Supreme Court
denied his petition for writ of certiorari. Rolling v. Florida, 522 U.S. 984 (1997).
Rolling first filed a Florida Rule of Criminal Procedure 3.850 motion for
postconviction relief in November 1998, and filed an amended motion in April

1. On direct appeal, Rolling raised the following six claims of error: (1) the
trial court abused its discretion in denying his motion for a change of venue and
thereby violated his Sixth Amendment right to be fairly tried by an impartial jury
because pervasive and prejudicial pretrial publicity so infected the Gainesville and
Alachua County community that seating an impartial jury there was patently
impossible; (2) the trial court erred in denying Rolling’s motion to suppress his
statements which were obtained in violation of his Sixth Amendment right to
counsel; (3) the trial court erred in denying Rolling’s motion to sever and conduct
three separate sentencing proceedings; (4) the trial court erred in denying Rolling’s
motion to suppress physical evidence seized from his tent because the warrantless
search and seizure violated his reasonable expectation of privacy under the Fourth
Amendment; (5) the trial court erred in finding as an aggravating circumstance that
the homicide of Sonya Larson was especially heinous, atrocious, or cruel; and
finally (6) the trial court erred by giving an invalid and unconstitutional jury
instruction on the heinous, atrocious, or cruel aggravating circumstance.
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1999, raising two claims.2 After conducting an evidentiary hearing, the trial court
denied relief, and this Court affirmed. Rolling v. State, 825 So. 2d 293, 294 (Fla.
2002).

Thereafter, Rolling sought federal habeas relief in the United States District
Court for the Northern District of Florida. The district court denied relief on July
1, 2005, and Rolling appealed. On February 9, 2006, the Eleventh Circuit issued
an opinion affirming the district court’s denial of Rolling’s petition for a writ of
habeas corpus. Rolling v. Crosby, 438 F.3d 1296, 1298 (11th Cir. 2006). The
United States Supreme Court denied certiorari on June 26, 2006. Rolling v.
McDonough, 126 S. Ct. 2943 (2006).

On September 22, 2006, Governor Jeb Bush signed a death warrant
authorizing Rolling’s execution. In response to the signing of the death warrant,
Rolling filed his second 3.851 motion on October 4, 2006, which raised four
claims.3 The State filed a response on October 6, 2006. On October 9, 2006, the
2. The claims were as follows: (1) ineffectiveness of trial counsel regarding
change of venue, and (2) ineffectiveness of trial counsel for failing to challenge
three particular jurors during voir dire.

3. The claims were as follows: (1) access to the files and records pertaining
to Rolling’s case in the possession of certain state agencies has been withheld in
violation of chapter 119, Florida Statutes, the Eighth and Fourteenth Amendments
to the United States Constitution, and articles 1, 9, and 17 of the Florida
Constitution; (2) the existing procedure that the State of Florida utilizes for lethal
injection violates the Eighth Amendment to the United States Constitution, as it
constitutes cruel and unusual punishment; (3) the administration of pancuronium
bromide violates Rolling’s First Amendment right to free speech; and (4) newly
discovered empirical evidence demonstrates that Rolling’s conviction and sentence
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trial court entered its order summarily denying all claims raised in the successive
motion. This appeal follows.

LETHAL INJECTION
Rolling first argues that the trial court erred in denying Rolling’s claim that
Florida’s method of execution by lethal injection violates Rolling’s right to be free
of cruel and unusual punishment under the Eighth and Fourteenth Amendments of
the United States Constitution, and his right to free speech as guaranteed by the
First Amendment. Rolling also argues that the trial court erred in denying
Rolling’s motion to obtain public records from the Florida Department of
Corrections and the Medical Examiner for the Eighth Judicial Circuit of Florida
pertaining to autopsy and toxicology reports of persons executed in Florida by
lethal injection and protocols used in the lethal injection process.

This Court has
explained:

Florida Rule of Criminal Procedure 3.850(d) provides that a
defendant is entitled to an evidentiary hearing on postconviction
claims for relief unless “the motion, files, and records in the case
conclusively show that the movant is entitled to no relief.” Florida
Rule of Criminal Procedure 3.851(f)(5)(B) applies the same standard
to successive postconviction motions in capital cases. In reviewing a
trial court’s summary denial of postconviction relief without an
evidentiary hearing, this Court “must accept all allegations in the
motion as true to the extent they are not conclusively rebutted by the
record.” Hodges v. State, 885 So. 2d 338, 355 (Fla. 2004) (quoting
Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999)). “To uphold the
of death constitute cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments to the United States Constitution.
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trial court’s summary denial of claims raised in a 3.850 motion, the
claims must be either facially invalid or conclusively refuted by the
record.” McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (quoting
Foster v. Moore, 810 So. 2d 910, 914 (Fla. 2002)).
Rutherford v. State, 926 So. 2d 1100, 1108 (Fla.), cert. denied, 126 S. Ct. 1191
(2006).

We find no error by the trial court under this standard.

Cruel and Unusual Punishment

In his first claim, Rolling argues that a research letter published in April
2005 in The Lancet presents new scientific evidence that Florida’s procedure for
carrying out lethal injection may subject the inmate to unnecessary pain. See
Leonidas G. Koniaris et al., Inadequate Anaesthesia in Lethal Injection for
Execution, 365 Lancet 1412 (2005). He supports this claim with an affidavit from
one of the study’s authors, Dr. David A. Lubarsky, asserting that Florida’s
procedure is substantially similar to the procedures used in the other states
evaluated in the study. Rolling ultimately asserts that the information in this study
is new information not previously available to this Court when it decided Sims v.
State, 754 So. 2d 657 (Fla. 2000).

The trial court summarily denied this claim and found that Rolling was not
entitled to an evidentiary hearing on whether lethal injection, as administered in
Florida, constitutes cruel and unusual punishment, stating that this Court
determined in Sims, that lethal injection as administered by the Department of
Corrections did not constitute cruel and unusual punishment. In Hill v. State, 921
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So. 2d 579 (Fla.), cert. denied, 126 S. Ct. 1441 (2006), this Court addressed the
same claim now asserted by Rolling and upheld the trial court’s summary denial of
the claim. We again rejected such a claim in Rutherford v. State, 926 So. 2d at
1113-14. As in those cases, we affirm the trial court’s summary denial of this
claim in Rolling’s case.

First Amendment Claim

Rolling next asserts that the circuit court erred in denying an evidentiary
hearing on his claim that the administration of pancuronium bromide violates his
free speech rights as guaranteed by the First Amendment to the United States
Constitution. Specifically, Rolling contends that the administration of
pancuronium bromide, which paralyzes the muscles, violates his right to free
speech because it renders him unable to communicate any feeling of pain that may
result if the execution procedure is carried out improperly. Thus, Rolling’s claim
is inextricably intertwined with his claim that there is a possibility that the first
chemical, sodium pentothal, will not be administered properly, leaving him wholly
or partially conscious.

The circuit court summarily denied this claim. In Rutherford, this Court
addressed the same claim and found that, because the defendant could not
demonstrate that the chemicals involved in lethal injection would be administered
improperly in his case, the defendant was not entitled to relief on this claim. 926
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So. 2d at 1114-15. Therefore, as in Rutherford, we find Rolling’s identical First
Amendment claim to be without merit and find no error in the trial court’s denial
applying our decision in Rutherford.

Public Records Claim

Rolling next argues that the circuit court erred in denying an evidentiary
hearing on his claims arising from his public records requests. On September 28,
2006, Rolling filed a motion for production of additional public records to the
Florida Medical Examiner’s Office of the Eighth Circuit of Florida and the
Department of Corrections, and a motion for serological samples and for
independent testing to the trial court.

Rolling requested autopsy reports and
toxicology studies performed on the sixteen individuals executed by lethal
injection from 2000 to 2005 and all documents related to the Department of
Corrections’ administration of lethal injection and Rolling’s own medical records.
He also requested to have independent testing of post-execution blood samples of
Arthur Rutherford, scheduled for execution on October 18, 2006. The State filed
responses opposing each of these requests.

On October 4, 2006, the trial court
entered an order denying Rolling’s motion for production of additional public
records and motion for serological samples and for independent testing because
Rolling had served this public records request six days after Governor Bush signed
Rolling’s death warrant on September 22, 2006. The trial court stated that Rolling
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was entitled to his own medical records as long as he complies with Department of
Corrections regulations. Rolling then argued that the withholding of public records
violates chapter 119, Florida Statutes, the Eighth and Fourteenth Amendments to
the United States Constitution, and article I, sections 9 and 17 of the Florida
Constitution. The circuit court denied this claim.

Florida Rule of Criminal Procedure 3.852(h)(3) applies to cases in which a
mandate was issued prior to the effective date of the rule. The effective date of the
rule was October 1, 1998, and this Court affirmed Rolling’s conviction and death
sentence on March 20, 1997.

The rule states:
Within 10 days of the signing of a defendant’s death warrant,
collateral counsel may request in writing the production of public
records from a person or agency from which collateral counsel has
previously requested public records. A person or agency shall copy,
index, and deliver to the repository any public record:
(A) that was not previously the subject of an objection;
(B) that was received or produced since the previous request; or
(C) that was, for any reason, not produced previously.
Fla. R. Crim. P. 3.852(h)(3) (emphasis added).

Because there is no evidence in the
record that Rolling has ever requested records from the Medical Examiner’s Office
or the Department of Corrections before his September 28, 2006 request, we find
that the trial court was correct in denying this claim without an evidentiary hearing.
See also Rutherford, 926 So. 2d at 1115-17 (denying the substantially same records
request because the defendant failed to demonstrate that he had previously
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requested records concerning lethal injection in Florida, and reasoning that rule
3.852(h)(3) “is designed to allow an update of records previously requested”).

THE ABA REPORT

Rolling asserted a claim in the trial court that the American Bar Association
report entitled Evaluating Fairness and Accuracy in the State Death Penalty
System: The Florida Death Penalty Assessment Report, published September 17,
2006, constitutes newly discovered evidence proving that imposition of the death
penalty is cruel and unusual punishment in violation of the Eighth Amendment of
the United States Constitution. The trial court denied this claim.

We recently
addressed this issue in Rutherford v. State, Nos. SC06-1931 & SC06-1946 (Fla.
Oct. 12, 2006), wherein we concluded that the ABA Report is not newly
discovered evidence because it “is a compilation of previously available
information related to Florida’s death penalty system and consists of legal analysis
and recommendations for reform, many of which are directed to the executive and
legislative branches.” Id., slip op. at 10. We also held that nothing in the report
would cause this Court to recede from its past decisions upholding the facial
constitutionality of the death penalty, and that the defendant did not allege how any
of the conclusions in the report would render his individual death sentence
unconstitutional. Id., slip op. at 11.

For these same reasons, we affirm the circuit
court’s summary denial of Rolling’s claim.
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CONCLUSION

For the reasons explained above, we affirm the circuit court’s order denying
Rolling’s successive motion for postconviction relief. No motion for rehearing
will be entertained.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and
BELL, JJ., concur.
NO MOTION FOR REHEARING WILL BE ALLOWED.

An Appeal from the Circuit Court in and for Alachua County,
Stan R. Morris, Judge - Case No. 91-3832-CFA
Baya Harrison, Monticello, Florida and Clyde M. Taylor, Jr., Tallahassee, Florida,
for Appellant
Charles J. Crist, Jr., Attorney General and Carolyn M. Snurkowski, Assistant
Deputy General Counsel, Tallahassee, Florida,
for Appellee